28 January 2026
The U.S. president’s relationship with the law in domestic and foreign affairs is asymmetrical
by Leonid Nikitinsky
Source: Novaya gazeta
It is Donald Trump’s foreign affairs initiatives that are most important for us today, but we will begin with a brief overview of changes to US legislation and domestic policy during the first year of Trump’s second term. Novaya gazeta was assisted in this article by Igor Slabykh [designated a ‘foreign agent’ by the Russian authorities], who holds a Master of Laws degree from the US and runs a specialized Russian-language Telegram channel.
On 1 July 2024, when the presidential campaign was in full swing, the US Supreme Court issued an important ruling granting the president of the United States full immunity from prosecution for actions taken within the scope of his presidential authority. The ruling also establishes presumptive immunity for other official acts. The court’s six conservative judges voted in favor, with the three liberal judges voting against. The case concerned Trump’s actions during his first term as president, including accusations of calling for the storming of the Capitol in January 2021.
Many lawyers disagree with this ruling, since no such immunity is explicitly mentioned in the US Constitution and it has no precedent in the country’s history. Notably, Slabykh points out that the Supreme Court followed this same logic in 2022 when it ruled against and overturned its own 1973 ruling concerning the constitutional right to abortion.
One can debate in the abstract about the Supreme Court’s 1 July decision, but even before Trump’s reelection and inauguration he was granted de facto more power than any president before him. Accordingly, the special operation conducted in Venezuela on 3 January will not serve as grounds for prosecuting Trump, regardless of potential future consequences.
The leverage Trump gained by virtue of this court ruling has allowed him to take immediate action with total disregard for the legislative branch: he eliminated the US Agency for International Development (USAID) and other government organizations, blackmailed universities by threatening cuts in federal funding, and dismissed civil servants without explanation, including top-ranking prosecutors, inspectors general of various departments, and immigration judges employed by the Department of Justice.
The Trump administration has acted with particular aggression when it comes to immigration policy, as Novaya gazeta has previously reported in detail (see the issue of 24 December 2025).
However, such decisions by the Trump administration can typically be appealed in federal court, and this happens fairly often. Federal judges appointed for life by no means always side with the administration.
As of last autumn, 148 rulings had been issued in lawsuits against Trump’s measures since the start of his second term. Fifty-seven were issued in favor of the administration, while 91 partially or fully blocked its measures, although many of the latter were subsequently overturned by the Supreme Court, where Republicans remain in the majority.
On 27 June, the Supreme Court ruled to limit the ability of lower-level federal courts to block a president’s executive orders at the national level. Now federal judges can only issue rulings that apply to specific plaintiffs; their rulings will lack the force of precedent.
Slabykh notes that, when resolving important disputes, the Supreme Court abuses the process of expedited proceedings, which allows it to issue rulings without providing its legal reasoning.
At the same time, there has been a substantial increase over the past year in refusals on the part of grand juries to initiate criminal proceedings. Grand juries hear the prosecutor speak and decide, by a simple majority vote, whether there is sufficient evidence to proceed with the case, or whether it makes no sense to do so at all.
In summary, when it comes to domestic affairs, Trump is attempting to use what in Russia is called ‘administrative resources’, and he is not ashamed to publicly call judges ‘animals’. Yet these actions do run up against the system of checks and balances for which the US has always been considered a model. Thus, when it comes to domestic policy, there are limits to the Trump administration’s arbitrary actions — unlike his actions on the international stage, where, as Trump himself says, he is restrained only by his own morality and common sense.
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If Trump is forced to play by the rules in domestic affairs, in foreign affairs he aspires to ignore them and create new ones.
Upon the ruins of international law – destroyed not without his active involvement – Trump is trying to launch a new institution by means of which to solve international conflict: the Board of Peace.
Anything capable of creating peace is good, but this body is of questionable legitimacy. If Trump envisioned this Board to act like a court of arbitration, then its authorisation will require conflicting parties to give their blessing, which is problematic.
If this is a body of ‘global government’, on what will be the basis of its authority? By what power will its decisions be enforced?
Once Trump does away with the crystal lattice of the law, then there must be some kind of underlying foundation upon which he can support himself, not just his ‘own reason’. Such a foundation, it would seem, is the legitimacy which predates the law and allows it to be reviewed.
On the world stage, Trump’s legitimacy is based on his undisputed role, as recognised by all 193 United Nations member states, as the legitimate leader of the most powerful state in the world today. But in trying to create a ‘new UN’, only 19 of the 49 states invited to form this body accepted their invitations, including five former-Soviet Union countries and no leading European states.
Trump appointed himself the irreplaceable leader of the Board and his minions to leading posts, while he has kept for himself the right to veto any Board decision and the right to invite other states to join it. Declining an invitation is risky: Trump has promised ‘not to forget’; while accepting one is humiliating owing to the obvious inequality of the member states.
The concept of legitimacy was devised by German philosopher Max Weber, who divided it into three forms: traditional, charismatic and rational. Rational legitimacy is identical to legal rationality: if all subjects, including the government, act within legal limits, this is the most rational means of coexistence.
But what becomes of this legitimacy in an era such as today, when legality is in crisis? The strongest (and most charismatic) subjects turn to ‘might is right’ to revise the status-quo, while the remaining subjects are left with no better strategies than conformism – and opportunism. Just as in the schoolyard it is not always the leader who appears (and changes), but the one whom the others tacitly recognise on the basis of ‘might is right.’ Refusing such a one’s proposals brings danger; agreeing with them brings dependence.
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The Prime Minister of Canada, Mark Carney, put this brilliantly at the recent Davos forum. Dividing countries into superpowers and middle-powers, he argued that opportunism only creates the illusion of safeguarding sovereignty. The middle powers need to unite (in various ways on various issues) to avoid being swallowed by the superpowers – if not de-jure, then de-facto. This idea resonated with Trump enough for him to withdraw Canada’s invitation to his Board of Peace.
International law and domestic law are united by one common feature: so-called natural human rights. After the Second World War, the European states agreed that human rights were a common cause to be observed on a supra-national basis. This fundamental principle gave birth to the Council of Europe and the European Court of Human Rights, but this consensus is now disputed in favour of national sovereignty, including by Russia and the United States of America. (Not just those countries: In China, for example, power is arranged differently and they are dismissive of the entire concept of human rights.) In the international agenda, dictated by the superpowers, the question of human rights is basically absent – in the heat of competition they are too preoccupied with national sovereignty.
By Carney’s logic, the issue of human rights needs to be brought onto the agenda by the middle powers, on whose level the status of the individual is more clearly visible. While the creation and reform of international institutions can become a focus of attention, the individual, for whose benefit law (including international law) exists, must not be forgotten.
Until recently, America claimed the role of the global policeman on issues of democracy and human rights, occasionally using this as a pretext for intervention in other nations’ affairs, but Trump in his second term considers this an unnecessary burden.
In Trump’s ‘Great Again’ America is largely indifferent to human rights. Trump’s right-wing policies put the economy front-and-centre.
Meanwhile, Trump’s approval ratings across America have been sinking and were at only 35% in January this year. Trump’s charisma has burned out and in America, political legitimacy is founded on Weber’s law-based rational model, that very element with which he does not want himself to be associated, while law-abiding voters await the next election.
79-year-old Trump has three more years in office to find a way to hold on to power – like his buddy Vladimir. But America is not Russia and it cannot be seriously expected that the electoral process will be turned into a matter of mere administrative will.
In practice, it can be hard to define the line between cynicism and honesty. Trump openly states ‘I myself am the law’ and claims his own morals and judgement are the only limitations on his actions. Vladimir Putin, by contrast, never gets tired of bowing to the law. Which of the two is the more cynical or the more honest?
Translated by Nina dePalma and Oscar Seecharan
