Trump’s Vision for Policing Comes into Focus

One day before President Trump hit 100 days in office, his vision for policing in the United States fully came into focus. On April 28, Trump signed Executive Order 14288, entitled “Strengthening and Unleashing America’s Law Enforcement to Pursue Criminals and Protect Innocent Citizens.”

“Unleashing” things is a theme in Trump’s executive orders—at least six executive orders (EOs) to date have included a form of that word in their titles. But “unleashing” is particularly stark in the policing context, suggesting a desire for policing unconstrained by law or democratic norms. The substance of the EO is consistent with this suggestion. In contrast to the first Trump administration, there is no semblance of commitment to police accountability. Instead, the EO rejects a federal role in holding state and local police accountable to law, and commits instead to policing that is militarized and unaccountable.

While split into seven short sections, the EO essentially reflects two overarching aims: First, it seeks to redefine desirable American policing as politicized, militarized, and repressive. In this respect, the tone set by the EO is as important as any of its purported requirements. Second, the EO reflects the administration’s efforts to make police accountability even more difficult to achieve than it already is.

To be sure, nothing in the EO is self-executing, and, in many respects, it restates what is, or demands what cannot be (at least legally). Nonetheless, people concerned about accountable, democratic policing should take the EO seriously because it illustrates how Trump hopes to use policing to further his own aims rather than to protect people. But a close read of the EO also provides insights into how to thwart those aims.

Politicized Law Enforcement

The EO begins with a “purpose and policy” section that accuses “local leaders” of “demoniz[ing]” law enforcement by imposing “legal and political handcuffs” that make “aggressively” enforcing the law impossible. The idea that police are “handcuffed” is unsupported: A wealth of studies, books, and personal accounts catalog the legal and political latitude already given to police to aggressively enforce the law. To the extent that police leaders reject aggressive policing, it is not because the law requires them to; it is because they know it is wrong and because it does not work.

But the point here is that this counterfactual language serves to preview a theme that runs through the rest of the EO: that Trump expects state and local law enforcement to follow his dictates, rather than the rule of law and valid policies set by state and local leaders. Trump made clear during the campaign and since being elected again that he intends to bully local officials into promoting the kind of policing Trump prefers, regardless of what the law allows. “Requiring” widespread use of stop-and-frisk is often cited as an example, but that strategy is relatively mild compared to other practices Trump would like to see become the norm. Speaking about shoplifters at one event, Trump stated: “Very simply, if you rob a store, you can fully expect to be shot as you are leaving that store.”

Echoing threats to go after jurisdictions that refuse to allow police to follow Trump’s lead, the EO directs the attorney general to pursue “all necessary legal remedies and enforcement measures,” prioritizing federal criminal prosecutions, against state and local officials who “unlawfully” prohibit police officers from “carrying out the duties necessary for public safety and law enforcement.” Though not called out explicitly in the EO, this latter group likely extends beyond police and includes “progressive prosecutors,” against whom Trump has long railed, for their critique of mass incarceration and support for evidence-informed strategies that promote public safety. Trump’s campaign platform promised to open Justice Department civil rights investigations of what he called “radical Marxist prosecutors.”

State and local law enforcement politicized in service of the president is unacceptable in a democracy, and not just because this president encourages brutal, extralegal policing. It is broadly recognized that President Trump’s determination to violate the law as necessary to further his political aims is undermining the integrity of our democracy. The law enforcement EO serves to pressure law enforcement to assist him in this effort.

One example of this involves President Trump’s current effort to implement, in his words, the “largest deportation operation in American history.” This can be viewed as an aggressive, and politically popular, attempt to make up for Congress’s decades-long failure to update the nation’s immigration framework. But, as the deportation effort is being carried out, it also undeniably plays on Trump’s inaccurate and racist claims about crime and furthers white nationalist aims held by Stephen Miller, an architect of Trump’s immigration plan and his attempt to end birthright citizenship, among other influential actors in the Trump administration, as has been well documented and long recognized. To date, the Trump administration’s deportation efforts have focused disproportionately on people whose ethnic, religious, or political identities are disfavored by the administration, even if they are here lawfully. Further, this administration has proved to be comfortable with violating the law, including fundamental constitutional principles like due process and separation of powers, in carrying out this deportation effort. While the courts have been almost entirely uniform in holding Trump’s challenged conduct in the immigration arena unlawful, it has also become clear that, if the administration can violate the law quickly enough, it may take months or years for courts to correct the violations, and the harm may never be remedied.

In other words, a lack of sufficient federal law enforcement agents, rather than the courts, may be the more formidable obstacle to the administration’s unlawful mass deportation efforts. Consistent with this understanding, Trump recently ordered the Department of Homeland Security to add 20,000 officers to aid the administration’s deportation efforts, calling on the department to “deputiz[e] and contract[] with state and local law enforcement officers,” among others. Homeland Security has responded by requesting more than 20,000 National Guard members from the  Department of Defense.

As others have written elsewhere, it is not at all clear that the administration can legally require National Guard members to participate in Trump’s mass deportation effort. Thus, at least for the moment, the Trump administration still needs the aid of state and local law enforcement to carry out mass deportations, as Immigration and Customs Enforcement (ICE) Director Madison Sheahan recently made clear in announcing the “success” of “Operation Tidal Wave” in Florida.

Trump’s executive orders, including the law enforcement EO, accordingly seek to increase pressure on local governments to do Trump’s bidding when it comes to immigration. Section 6 of the EO directs the attorney general and secretary of homeland security to use the Homeland Security Task Forces set out in Trump’s Jan. 20 EO, “Protecting the American People Against Invasion,” to implement the law enforcement EO. That EO makes specious claims of an “invasion” to justify the administration’s unlawful detentions and deportations, requires all federal law enforcement agencies to participate in these task forces, and purports to require representation from state and local law enforcement agencies as well.

There are plenty of states and local jurisdictions like Florida, which directed all sheriffs and jails to enter into 287(g) agreements, eager to assist the federal government’s expulsion efforts. But many more are loath to take part. The Trump administration wants to require them to do so anyway. The “invasion” EO threatens local “sanctuary” jurisdictions with criminal and civil actions (Section 17), even as it pressed (in Section 11) for the expansion of the notoriously abusive 287(g) program, in which ICE delegates immigration authority to state and local law enforcement. While it is settled law that the federal government cannot lawfully require state and local law enforcement agencies to participate in federal efforts to expel vulnerable people, it can use the threat of criminal prosecutions and funding cuts to pressure them to do so. The “invasion” EO was enough of a threat to cause 16 so-called sanctuary jurisdictions to file a federal lawsuit prohibiting the administration from cutting off funding. They have obtained preliminary relief, but as underscored by the law enforcement EO’s directive to the attorney general to inject federal task forces into local law enforcement, the threat of federal pressure to compel deportation cooperation remains.

The law enforcement EO also seeks to expand the administration’s political agenda to end diversity, equity, and inclusion programs. The EO directs the attorney general to “pursue all necessary legal remedies and enforcement measures” against state and local officials who “unlawfully engage in discrimination or civil-rights violations under the guise of ‘diversity, equity, and inclusion’ initiatives that restrict law enforcement activity or endanger citizens.” In addition to the obvious risk that law enforcement agencies that rush to comport with Trump’s political agenda will inadvertently violate anti-discrimination laws in the process, this language sends a dangerous message that efforts to diversify policing, as well as to enable efforts to teach police to recognize and overcome deadly stereotyping and unconscious bias, may be deemed to be not only misguided, but potentially unlawful. It also ignores the particular importance of diversity in policing: Research shows that while diversity is not a cure-all for what ails policing, a racially and gender-diverse police force can be generally less violent and punitive, and result in fewer police shootings.

The EO thus seeks to extend to law enforcement a norm of politicized fealty to Trump, rather than to law and the mandates of one’s own local constituents. This extension and expansion creates the framework for enforcement of a politics-over-law norm through force and coercion.

Militarized, Repressive Policing

In addition to seeking to extend to policing a norm of politicized presidential fealty, the EO rejects the idea that policing should be premised on legitimacy and instead reflects the president’s view that police should rely on intimidation and force. The EO seeks to make it easier for law enforcement to compel submission through intimidation and the use of force in two ways: through the militarization of local police and through using the military for domestic policing functions.

Police, of course, already have authority granted by the state to coerce compliance with the law using the threat of force and actual force, including deadly force. But the change to policing contemplated in the EO is not just one of degree. The EO contemplates policing that is qualitatively more brutal and repressive.

Militarizing Local Police

The law enforcement EO gives the attorney general and the secretary of defense 90 days to “increase the provision of excess military and national security assets in local jurisdictions to assist State and local law enforcement.” The language appears to refer to programs, most notably (but not only) the “1033” program, pursuant to which state and local governments are given excess military equipment from the Department of Defense for free. These programs have been controversial in part because of their lack of transparency or oversight, and in part because they provide a range of inapt weapons and equipment, including combat-ready equipment, like mine-resistant ambush-protected vehicles (MRAPS), to states and cities. This equipment contributes to normalizing militarized police departments and has been used inappropriately in circumstances ranging from nonviolent protests to the execution of routine search warrants. President Obama put limits on the program, which Trump rescinded during his first administration, only to be partially reinstituted during the Biden administration. The law enforcement EO likely means that the federal government will soon issue new rules meant to allow greater access by state and local jurisdictions to a broad range of military equipment.

Further, there is reason to be concerned that the equipment provided under this administration may include surveillance technology that enables mass deportation and threatens civil liberties more broadly. Many in law enforcement have become increasingly enamored with artificial intelligence (AI)-enhanced surveillance technology and have actively sought federal help to obtain such equipment. The federal government, for its part, is of the view that better technology will make it easier to deport people. It would not be surprising to see this provision of the law enforcement EO result in increased efforts to provide surveillance technology to state and local law enforcement. It is worth noting that Police1, a pro-police online publication, published a description of the EO that focused entirely on its implications for the use of AI by law enforcement.

Unfortunately, the EO’s call for more police access to improved training is likely to promote repressive policing as well. The right police training can reduce policing harm and legal violations. But the wrong training is often worse than no training at all. A look at the broader context indicates that the training required in response to this EO is likely to fall into the latter category. In the same section requiring more training, the EO encourages the development of “new best practices” to “aggressively police communities against all crimes,” and “unleash high-impact local police forces” and to “surge resources to officers in need.” It appears that the EO’s intent is for the Justice Department to promote policies and training that most people familiar with effective policing would consider more akin to “worst practices” that promote the kind of “high-impact local police forces” that killed Tyre Nichols.

This language should also be read in the context of other indications that the Justice Department is eschewing best practices in favor of reverting to failed ones: Just prior to this EO, the Justice Department canceled millions of dollars in grants aimed at reducing gun violence, preventing and treating addiction, and supporting victims of crimes. These programs were evidence based and focused both on preventing crime and addressing its harms.

Military as Local Police

Perhaps the most concerning directive in the EO is the requirement that the secretary of defense, along with the attorney general, determine within 90 days how military and national security assets, training, nonlethal capabilities and personnel can be used to “prevent crime.”

Trump has, for years, made statements indicating a willingness to deploy U.S. military personnel to “fight crime” in our cities and towns, notwithstanding the many dangers and legal problems this would pose, including, among others, federalism concerns and the Posse Comitatus Act’s prohibition on using the military for domestic law enforcement. The assumption had been that this would require a specious but difficult-to-challenge invocation of the Insurrection Act, which would perhaps include bringing National Guard troops under federal control.

As noted above, this scenario is still plausible, especially in the mass deportation context. But there is another approach to using the military as local police to fight local crime that is worth keeping tabs on, given Trump’s actions since he was reelected. Trump declared a national emergency on the southern border on Inauguration Day and has since increased the use of the military along parts of the southern border. Recently, the military has begun designating areas, some unattached to any military installations, as military installations nonetheless, allowing military personnel to essentially conduct local law enforcement in those areas.

This action raises fundamental questions about the line between police and military, including what rules the latter should follow when it is acting like the former. While courts are already finding some of these efforts unlawful, the administration may attempt to normalize using the military to carry out domestic law enforcement throughout the entire border, which, under law, extends 100 miles inland and covers two-thirds of the U.S. population. Customs and Border Protection of course already conducts local-law-enforcement-type functions in this area (for example, making roving car stops and searches, as well as setting up checkpoints, boarding public transportation, and the like), and this latitude has expanded under this administration, including enforcement in new geographic areas.

Unaccountable Police Forces

Giving police the equipment and latitude to rely on brute force is unlikely to have a sustained impact unless they are able to do so with impunity. The EO addresses this too.

Here too, the EO should be read in the broader context of Trump’s attempts to normalize unaccountability for law enforcement since his second election. One example is the extent to which it has become seemingly routine for federal law enforcement officers to conceal their identities. The masked, plain clothes agents who snatched Rümeysa Öztürk off the street are perhaps the most well-known examples, but the practice has been well documented elsewhere, building on the actions of masked, camo-wearing federal agents, who, during Trump’s first time in office, leapt out of unmarked vehicles to snatch protesters off the street in Portland during the George Floyd protests.

Contrast this with the very different message the executive branch sent to local law enforcement, not so long ago. In 2014, as an attorney in the Justice Department’s Civil Rights Division leading the pattern-or-practice investigation of the Ferguson police department, I sent, on behalf of the department, a letter to Ferguson’s chief of police regarding the importance of officers wearing name plates and otherwise being readily identifiable during protests. “Allowing officers to remain anonymous when they interact with the public contributes to mistrust and undermines accountability,” I wrote, “The failure to wear name plates conveys a message to community members that, through anonymity, officers may seek to act with impunity.” This letter was sent during the middle of our investigation because, as noted in the letter, it was an issue that warranted the chief’s immediate attention. The Justice Department publicly released this letter (and a similar one admonishing wearing “I am Darren Wilson” bracelets) because it wanted the public and police everywhere to know that officers seeking to mask their identities is not acceptable in a democracy.

The EO’s requirement that the attorney general review the Civil Rights Division’s police consent decrees and other similar police reform agreements, and modify or rescind them where they “unduly impede the performance of law enforcement functions,” should be read against this backdrop. On its face, this directive might sound mild. After all, Jeff Sessions, when he was attorney general during the first Trump administration, ordered a similar review, and its impact was not as dramatic as many feared.

But, when placed within the broader context, it becomes clear that, as predicted, this time is not like last time. Consistent with the fundamental shift in ethos described above, this administration is dismantling the federal government’s framework for holding state and local police accountable. These efforts began on day one. Trump’s Executive Order 14148, issued on Jan. 20, rescinded the Biden police accountability EO issued in 2022, entitled “Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety.” As I wrote back in 2022, that EO sent the right message about law enforcement but was necessarily limited in its reach. The EO did have tangible impacts, however, including the creation of a national database that allowed jurisdictions to determine whether potential law enforcement hires had a history of misconduct. The database went offline soon after Trump rescinded the EO that created it.

More dramatically, the Trump administration has essentially rendered defunct the Special Litigation Section of the Civil Rights Division, which focused on remedying patterns of police misconduct in state and local agencies. The section’s chief reportedly will soon be leaving to avoid permanent reassignment, and it was made clear to those who remained that the administration would not merely halt new police cases, as happened during the first Trump administration, but that it would redirect the work of the Civil Rights Division to projects that are a distraction from core civil rights concerns (like the recently opened investigation of the Los Angeles County Sheriff’s Department’s purported failure to approve gun licenses quickly enough), if not antithetical to those concerns (like the investigation of the Hennepin County (MN) prosecutor over an inartfully drafted policy clearly meant to lawfully reduce demonstrated racial disparities in the criminal legal system). The division’s efforts to pressure attorneys in the Criminal Section of the Civil Rights Division to undertake unethical legal action have further emphasized that staying may be untenable.

As a result, scores of attorneys and support staff in the Special Litigation Section have left or are in the process of leaving. The handful of police-focused attorneys that are left—less than five at the time of writing— have the unenviable task of prematurely ending police reform agreements or opening investigations that are tangential at best to the mission of the Civil Rights Division. The Division has already begun shutting down pending cases with its dismissal–four days before the fifth anniversary of George Floyd’s murder–of its pending consent decrees in Minneapolis and Louisville, and its “retraction” of its reports finding widespread constitutional violations in six additional police departments, including Memphis, Tennessee.

The work of police accountability will thus move from the federal government to the states and private plaintiffs, and likely will shift from a focus on forward-looking injunctive relief, to a focus on backward-looking remedies. While some states are developing the capability to achieve the kinds of broad injunctions that were the hallmark of the Civil Rights Division, these cases are resource intensive and proving difficult, so far, for states to achieve. It may be possible for states (or private plaintiffs) to intervene into cases initially brought by the Civil Rights Division and then abandoned under Trump; in addition to the jurisdictions with ongoing Justice Department police reform agreements, there are 10 jurisdictions where the Civil Rights Division issued reports finding a pattern or practice of police misconduct, but where no remedial agreement is in place. As attorney general of Illinois, Lisa Madigan took an approach similar to this and negotiated a consent decree with Chicago after Trump’s Justice Department refused to negotiate a reform agreement with Chicago despite a Civil Rights Division report finding a broad pattern of misconduct. Still, the difficulty of bringing these cases at scale likely means local governments will increase their reliance on criminal prosecutions to deter police misconduct. As underscored by the recent acquittals of some of the Memphis police officers involved in the killing of Tyre Nichols, and the mistrial in the case of a former Grand Rapids officer who shot a man in the back of the head, such prosecutions are as uncertain a remedy as they are an incomplete one.

Similarly, while nongovernmental actors have achieved important injunctive relief in places like Philadelphia and New York City, long-standing Supreme Court precedent has made it extraordinarily difficult for nongovernmental actors to achieve broad injunctive relief. Partially as a result of this, private plaintiffs tend to focus on civil damages suits against law enforcement officers for alleged rights violations. The EO purports to stymie those efforts as well, but here the EO is likely to have little impact. The EO promises to “protect and defend law enforcement officers wrongly accused and abused by State or local officials.” It requires the attorney general to “strengthen and expand legal protections for officers;” “seek enhanced sentences for crimes against law enforcement officers;” and create a mechanism to “provide legal resources and indemnification” to police who “unjustly” are held liable for their conduct. The EO further specifies that this mechanism must include “private-sector pro bono assistance.”

Aside from alerting the law firms that made (possibly illegal and unethical) deals to undertake pro bono projects as directed by Trump of what their futures hold, as with most of Trump’s pandering promises to state and local law enforcement, this one is mostly empty. Law enforcement officers already enjoy legal protections far beyond other defendants in both criminal prosecutions and civil suits, and they even get extra protections in administrative investigations. Legal doctrines like qualified immunity and de facto heightened scrutiny of standing in civil rights cases provide further protection. Police are usually provided legal counsel by the entity that employs them and are virtually always indemnified for any legal judgment entered against them. Prosecutors already seek enhanced sentences for crimes against law enforcement, and police unions and government officials generally work vigorously to “protect and defend law enforcement officers” even when the accusations against them are clearly meritorious.

The EO provisions promising even greater protection from legal liability for law enforcement do not, and are not meant to, change anything. Rather, alongside other parts of the EO, this language is meant to promote the idea that officers should be able to act with impunity, as long as they are aligned with the administration’s political aims.

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To reiterate, this EO does not impose any new requirements on states or local governments. Its vision of policing that is militarized and unaccountable is aspirational. This makes the EO useful both in illuminating how government officials and private parties must redouble their own efforts to ensure democratic, legitimate, accountable policing, and in underscoring the danger of anticipatory obedience. Passing laws and ordinances that promote police accountability, require transparency, and provide discretion to police not to cooperate with federal authorities such as ICE, for example, has perhaps never been more important. Speaking out in favor of policies that promote equality and fair treatment regardless of race, ethnicity, religion, or political views; recognizing the value of diversity in our big democracy; and standing together with other jurisdictions that are pushing back are equally important.