WASHINGTON — There was stark polarization on display Tuesday as U.S. senators argued over whether the U.S. Supreme Court’s ruling on presidential immunity effectively crowns the president a “king” or is consistent with the history of the office.
At the first congressional hearing on the matter court decision from JulyU.S. Senate Judiciary Committee lawmakers debated and heard from witnesses on the historic 6-3 vote opinion which granted presidents criminal immunity for core constitutional duties and presumptive immunity for actions “on the outer perimeter.” Personal acts are not immune, the court ruled.
Committee Chairman Dick Durbin of Illinois lamented that the Supreme Court “has now made it nearly impossible to hold a fugitive president accountable.”
“It will be up to the American people and Congress to hold the line because, as Justice (Sonia) Sotomayor noted in her dissenting opinion, ‘the president is now a king above the law,’” the Democratic senator said in his opening statement.
Top Republican Party official Lindsey Graham rejects Democratic nomination hearing as “designed to continue the attack on the court.”
“This hearing is about the continuing narrative of delegitimizing a court that you don’t like. We’ll see how that plays out in the long run,” Graham, of South Carolina, said.
Controversial decision
The Supreme Court’s immunity decision comes amid a heated 2024 presidential campaign — just a month after former President Donald Trump was elected convicted for 34 crimes in New York. It was the only one of his four criminal cases that went to trial.
Trump who is locked in a tight race with Vice President Kamala Harris in polls ahead of the 2024 presidential election, escalated his claim for presidential immunity to the Supreme Court, to which he appointed three conservative justices while he was in power. At the time, he was leading with President Joe Biden, who withdrew from the race in slow July.
Trump has argued that he cannot be charged with federal fraud and obstruction of justice for allegedly conspiring to overturn the results of the 2020 presidential election.
The Supreme Court sent the election challenge back to the court of first instance to decide which allegations still have merit in lightweight of the immunity ruling.
Justice Department Special Counsel Jack Smith issued replacing the indictment shortly thereafter, he upheld all four criminal charges but dropped any accusations that Trump pressured the Justice Department to intimidate state officials and manipulate the 2020 election results.
Graham downplayed Smith’s case as well currently released federal case alleging that Trump improperly held and refused to return classified information after leaving office, calling it “politically motivated legal garbage.”
Graham also criticized Trump’s 2020 Georgia election interference case and Trump’s New York state conviction for falsifying business records related to bribing a porn star before the 2016 election.
License to Abuse?
Three witnesses invited to testify before the Democratic-led committee warned that the immunity decision could have far-reaching consequences for American democracy and accused the court of abandoning long-standing safeguards for the executive branch.
Granting immunity from criminal liability “essentially authorizes the president to abuse his power and avoid punishment.”,“said Philip Allen Lacovara, former U.S. Assistant Attorney General and former counsel to the special counsel for the Watergate scandal.
The court “did not cite any historical practice in favor of criminal immunity,” Lacovara testified. “In fact, the practice is exactly the opposite.
“From my own experience with Watergate, President Nixon was under active criminal investigation for his role in the cover-up.”
Mary McCord, executive director of the Institute for Constitutional Defense and Protection at Georgetown University School of Law, agreed with the court that the president should be protected from using the powers set forth in the Constitution, including pardons and vetoes.
But she added that she was concerned that the court’s opinion “broadly defines fundamental constitutional rights that go far beyond those generally recognized rights.”
“Most believe that the former president is completely untouchable in the context of the alleged actions related to his conversations with Justice Department officials.
“Such conduct includes the charges in the indictment alleging that the state attempted to use the Justice Department to persuade certain states to replace their legitimate electors with fraudulent slates of Trump electors,” said McCord, who served in the Justice Department under both the Obama and Trump administrations.
McCord also questioned how criminal immunity would impact the future president’s interactions with other government bodies, including the Internal Revenue Service and the Central Intelligence Agency.
“The reforms Congress passed in the wake of past abuses would be useless under a president who has no concern for upholding the rule of law,” she said.
Timothy Naftali, a senior fellow at Columbia University’s School of International and Public Affairs, reminded the committee of Nixon’s investigation into Jewish members of the government, revealed in surviving tapes of his conversations.
“In assessing the implications of the Supreme Court’s decision to remove additional safeguards from the office of the presidency, I propose to consider certain events in 1971 and several other well-documented cases of presidential abuse of power,” said Naftali, former founding director of the Richard Nixon Presidential Library and Museum.
Resistance when needed
Witnesses called by the Republican Party minority dismissed concerns about presidential immunity as exaggerated.
Jennifer Mascott, director of the Institute on the Separation of Powers and an adjunct professor of law at The Catholic University of America, said that “since the court issued its opinion, a number of public statements and comments have significantly mischaracterized the content of the opinion and its scope.”
“Some of that exaggeration permeated some of the testimony prepared before the committee today,” she added.
Republicans reiterated that presidential immunity from prosecution stops a “Pandora’s box” of political reprisals against previous administrations through the courts.
Sen. John Kennedy, R-Louisiana, a ranking member of the House Subcommittee on Federal Courts, Oversight, Agency Operations, and Federal Rights, considered a scenario in which a district attorney in a Republican-controlled jurisdiction could sue Biden after he leaves office over the troop withdrawal from Afghanistan, during which 13 U.S. soldiers have been killed.
“Can you imagine a scenario where an ambitious district attorney after President Biden leaves office could bring charges against the president, former President Biden, for criminal negligence in causing the death of Americans?” he asked.
Former U.S. Attorney General Michael Mukasey, who served under former President George W. Bush, said the court’s ruling was “narrow, consistent with precedent and constitutional principles.”
“I think if one examines the history of controversial actions by presidents, it would be dangerous — particularly, but not exclusively, when it comes to actions that impact national security, such as border enforcement or drug enforcement — to subject presidents to the ongoing threat of prosecution for official actions after they leave office,” Mukasey said.
He cited the examples of former President Barack Obama’s drone killing of U.S. citizen Anwar al-Awlaki and former President Franklin D. Roosevelt’s internment of Japanese Americans during World War II.
“More importantly, I doubt many people believe our country would be better off if President Lincoln, Roosevelt, Clinton or Obama had been impeached or imprisoned for the controversial decisions they made while in power,” Mukasey said.
Can a lack of judicial ethics be blamed?
Senator Sheldon Whitehouse, chairman of the Federal Courts, Oversight, Agency Action and Federal Rights Subcommittee, blamed the court for lacking an enforceable code of ethics and “scary right-wing billionaires” for influencing judges’ decisions.
The court was he was rocking by the revelation that Justices Samuel Alito and Clarence Thomas failed to disclose donations and luxury trips from Republican donors. The justices faced no consequences, and the donors deny any wrongdoing.
“The Trump judges invented presidential immunity and then didn’t even carve out treason,” the Rhode Island Democrat said. “The first indication that the president is free to commit crimes comes from this court, just as we have our first felon, a presidential candidate.”
