Former President Donald Trump walks to speak to the media after being found guilty of state felony business falsification charges on May 30, 2024, in New York City. (Photo by Seth Wenig-Pool/Getty Images)
WASHINGTON — Stark polarization was on display Tuesday as U.S. senators argued whether the U.S. Supreme Court’s presidential immunity decision effectively crowns the president “a king” or aligns with the history of the office.
In the first congressional hearing on the court’s July decision, lawmakers on the U.S. Senate Committee on the Judiciary debated and questioned witnesses on the historic 6-3 opinion that granted presidents criminal immunity for core constitutional duties and presumptive immunity for “outer perimeter” actions. Personal acts are not immune, the court ruled.
Committee Chair Dick Durbin of Illinois lamented the high court has now “made it nearly impossible for the courts to hold a runaway president accountable.”
“It will be left to the American people and Congress to hold the line, because as Justice (Sonia) Sotomayor noted in her dissent, ‘the President is now a king above the law,’” the Democratic senator said in his opening statement.
Ranking Republican member Lindsey Graham dismissed the Democratic-led hearing as “designed to continue an attack on the court.”
“This hearing is about a continued narrative of delegitimizing the court you don’t like. We’ll see how this holds up over time,” said Graham of South Carolina.
A contentious decision
The Supreme Court issued its immunity decision in the thick of the roller coaster 2024 presidential election campaign — just one month after former President Donald Trump was convicted on 34 felonies in New York, the only of his four criminal cases to go to trial.
Trump, who is locked in a close race with Vice President Kamala Harris in the 2024 presidential election polls, escalated his presidential immunity claim to the Supreme Court, to which he appointed three conservative justices while in office. At the time, he was leading against President Joe Biden, who exited the race in late July.
Trump argued he could not be prosecuted on federal fraud and obstruction charges for allegedly conspiring to overturn the 2020 presidential election results.
The Supreme Court remanded the election subversion case to the trial court to decide which charges can still stand in light of the immunity decision.
Department of Justice special counsel Jack Smith issued a superseding indictment soon after that retained all four felony charges, but omitted all supporting accusations that Trump allegedly pressured the Department of Justice to intimidate state officials to manipulate the 2020 election results.
Graham downplayed Smith’s case as well as the now-dismissed federal case alleging Trump improperly stored and refused to return classified information after he left office as “politically motivated legal garbage.”
Graham also criticized the Georgia state 2020 election interference case against Trump and the New York state conviction of Trump for falsifying business records related to a porn star hush money payment ahead of the 2016 election.
A license for abuse?
Three witnesses invited to testify before the Democratic-led panel warned the immunity decision could lead to sweeping consequences for U.S. democracy and accused the court of abandoning long-standing guardrails on executive power.
Granting protection from criminal exposure “essentially licenses a president to abuse his power and get away with it,” said Philip Allen Lacovara, former U.S. deputy solicitor general and former counsel to the Watergate special prosecutor.
The court did “not rely on any historical practice in favor of criminal immunity,” Lacovara testified. “In fact, practice is exactly the opposite.
“I know from my own experience in the Watergate affair that President Nixon was under active criminal investigation for his role in the cover-up.”
Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law School, agreed with the court that the president should be protected for powers defined by the Constitution, including pardoning and vetoing.
But, she said, her concern is that the court’s opinion “capaciously defines core constitutional powers to extend far beyond these well recognized powers.”
“The majority holds that the former president is absolutely immune for alleged conduct involving his discussions with Justice Department officials.
“That conduct includes the indictment’s allegations about efforts to leverage the Justice Department to convince certain states to replace their legitimate electors with fraudulent Trump slates of electors,” said McCord, who served in the Justice Department during the Obama and Trump administrations.
McCord also questioned how criminal immunity would guide a future president’s interactions with other government arms, including the Internal Revenue Service and the Central Intelligence Agency.
“The reforms enacted by Congress in the wake of past abuses would be impotent in the case of a president unconcerned about adhering to the rule of law,” she said.
Timothy Naftali, senior research scholar at Columbia University’s School of International and Public Affairs, reminded the committee of Nixon’s investigation of Jewish members of the government, as revealed in his preserved recorded conversations.
“As we assess the effects of the Supreme Court’s decision to remove additional guardrails from the presidency, I suggest we consider some events of the year 1971 and a few other well documented episodes of presidential abuse of power,” said Naftali, the former founding director of the Richard Nixon Presidential Library and Museum.
Immunity as necessary
Witnesses invited by the panel’s GOP minority dismissed concerns about presidential immunity as overblown.
Jennifer Mascott, director of the Separation of Powers Institute and associate professor of law at The Catholic University of America, said “since the court handed down this opinion, a number of public statements and commentary have significantly mischaracterized the opinion’s holding and its scope.”
“Some of those overstatements have made their way into some of the prepared testimony before the committee today,” she continued.
Republicans reiterated that presidential criminal immunity keeps the lid on a “Pandora’s box” of political retaliation against former administrations via the courts.
Sen. John Kennedy of Louisiana, ranking member of the committee’s Subcommittee on Federal Courts, Oversight, Agency Action and Federal Rights, entertained the scenario that a district attorney in a Republican-held jurisdiction could sue Biden once he leaves office for the withdrawal from Afghanistan during which 13 U.S. service members were killed.
“Can you imagine a scenario in which an ambitious district attorney after President Biden’s out of office could bring a charge against President, former President Biden for criminal negligence in 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 historical record of controversial acts by presidents, it would be dangerous — particularly although not exclusively as to acts that impact national security such as border or drug enforcement — to subject presidents to the constant threat of prosecution for official acts when they leave office,” Mukasey said.
He used the examples of former President Barack Obama’s drone killing of U.S. citizen Anwar al-Awlaki and former President Franklin D. Roosevelt’s World War II internment of Japanese Americans.
“And even more pointedly, I doubt that many people think that our country would be better off if President Lincoln, Roosevelt, Clinton or Obama were prosecuted or imprisoned for controversial decisions they made in office,” Mukasey said.
Lack of court ethics to blame?
Sen. Sheldon Whitehouse, chair of the Federal Courts, Oversight, Agency Action and Federal Rights Subcommittee, blamed a lack of an enforceable ethics code on the court and “creepy right-wing billionaires” for influencing justices’ decisions.
The court has been rocked by revelations that Justices Samuel Alito and Clarence Thomas did not disclose gifts and luxury travel from Republican donors. The justices have not faced repercussions, and the donors deny any improper actions.
“The Trump justices invented presidential immunity and then didn’t even carve out treason,” the Rhode Island Democrat said. “The first mention ever that a president can freely commit crimes comes from this court, just as we have our first ever criminal presidential candidate.”