Decision on Trump’s immunity divides US Senate committee along party lines • Ohio Capital Journal

WASHINGTON — There was intense polarization on Tuesday as U.S. senators argued over whether the U.S. Supreme Court’s decision on presidential immunity actually crowns the president “king” or is consistent with the history of the office.

In the first congressional hearing on the court’s decision in July, members of the Senate Judiciary Committee discussed and questioned witnesses on the historic 6-3 ruling that granted presidents criminal immunity for core constitutional duties and presumptive immunity for acts in the “outer perimeter.” Personal acts are not immune, the court ruled.

Committee Chairman Dick Durbin of Illinois complained that the Supreme Court had now made it “virtually impossible for the courts to hold an out-of-control president accountable.”

“It will be up 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 remarks.

Top Republican Lindsey Graham dismissed the Democratic-led hearing, saying it was “designed to continue an attack on the court.”

“This hearing is about continuing the story of delegitimizing a court you don’t like. We’ll see how that plays out over time,” said Graham of South Carolina.

A controversial decision

The Supreme Court made its immunity decision in the midst of the hectic 2024 presidential campaign – just a month after former President Donald Trump was found guilty of 34 counts of high crimes in New York, the only one of his four criminal cases to go to trial.

Trump, who is running neck-and-neck with Vice President Kamala Harris in the 2024 presidential election, has taken his immunity claim to the Supreme Court, to which he appointed three conservative justices during his term, and at the time was ahead of President Joe Biden, who dropped out of the race in late July.

Trump argued that he could not be charged with fraud and obstruction of justice at the federal level for allegedly plotting to overturn the results of the 2020 presidential election.

The Supreme Court has referred the election interference case back to the Court of First Instance so that it can decide which charges remain valid in light of the immunity decision.

Shortly thereafter, Justice Department Special Counsel Jack Smith filed an amended indictment that retained all four counts but omitted all supporting allegations that Trump allegedly pressured the Justice Department to intimidate government officials and manipulate the results of the 2020 election.

Graham downplayed the Smith case, as well as a now-dismissed federal court lawsuit accusing Trump of improperly storing classified information and refusing to release it after leaving office, calling them “politically motivated legal nonsense.”

Graham also criticized Trump’s 2020 election interference trial in Georgia and Trump’s conviction in New York state for falsifying business records in connection with the payment of hush money to a porn star before the 2016 election.

A license to abuse?

Three witnesses scheduled to testify before the Democratic-led panel warned that the immunity decision could have far-reaching consequences for U.S. democracy and accused the court of abandoning long-standing guardrails for executive power.

Granting immunity from criminal prosecution “essentially empowers a president to abuse his power and get away with it.,“, said Philip Allen Lacovara, former U.S. Assistant Attorney General and former counsel to the Watergate Special Prosecutor.

The court “did not rely on any historical practice in favor of criminal immunity,” Lacovara said. “In fact, the practice is exactly the opposite.”

“I know from my own experience in the Watergate scandal 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’s constitutional powers, including pardons and vetoes, should be protected.

However, she said she was concerned that the court’s opinion “broadly defines core constitutional powers and goes far beyond those generally recognized powers.”

“The majority holds that the former president enjoys absolute immunity with respect to his alleged conversations with Justice Department officials.

“This conduct includes the allegations contained in the indictment about attempts to induce the Justice Department to persuade certain states to replace their legitimate electors with fraudulent Trump electoral colleges,” said McCord, who served in the Justice Department during the Obama and Trump administrations.

McCord also questioned how criminal immunity would govern a future president’s dealings with other government agencies, including the IRS and the CIA.

“The reforms that Congress has passed in the wake of past abuses of power would be ineffective under a president who does not care about 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 investigations into Jewish government officials, which emerged from the surviving conversation recordings.

“As we assess the impact of the Supreme Court’s decision to remove further guardrails for the president, I suggest we consider some events of 1971 and some other well-documented cases of presidential abuse of power,” said Naftali, the former founding director of the Richard Nixon Presidential Library and Museum.

Immunity as needed

Witnesses invited by the panel’s Republican minority dismissed concerns about the president’s immunity as exaggerated.

Jennifer Mascott, director of the Separation of Powers Institute and associate professor of law at the Catholic University of America, said, “Since the Court announced this ruling, numerous public statements and commentaries have significantly misrepresented the content and scope of this ruling.”

“Some of these exaggerations have found their way into some of the prepared testimony before the committee today,” she continued.

Republicans reiterated that the president’s criminal immunity is the lid of a Pandora’s box that allows for political retaliation against previous administrations through the courts.

Senator John Kennedy of Louisiana, ranking member of the Committee on Federal Courts, Oversight, Agency Operations and Federal Rights, considered the scenario that a district attorney in a Republican-held judicial district could sue Biden after he leaves office over the withdrawal from Afghanistan, in which 13 U.S. soldiers were killed.

“Can you imagine a scenario where, after President Biden leaves office, an ambitious district attorney could bring charges against former President Biden for criminal negligence in the deaths of Americans?” he asked.

Former U.S. Attorney General Michael Mukasey, who served under former President George W. Bush, said the court’s decision was “narrow and consistent with precedent and constitutional principles.”

“I think, given the history of controversial presidential actions, it would be dangerous – particularly, though not exclusively, when it comes to actions that affect national security, such as border or drug enforcement – to subject presidents to the constant threat of prosecution for official actions after they leave office,” Mukasey said.

He cited as examples the killing of US citizen Anwar al-Awlaki by a drone by former President Barack Obama and the internment of Japanese-Americans during World War II by former President Franklin D. Roosevelt.

“More importantly, I doubt many people think our country would be better off if Presidents Lincoln, Roosevelt, Clinton or Obama were prosecuted or imprisoned for controversial decisions they made while in office,” Mukasey said.

Is a lack of judicial ethics to blame?

Senator Sheldon Whitehouse, chairman of the Subcommittee on Federal Courts, Oversight, Agency Operations and Federal Rights, blamed the court for its lack of an enforceable code of ethics and accused “sinister right-wing billionaires” of influencing the judges’ decisions.

The court was rocked by revelations that Justices Samuel Alito and Clarence Thomas failed to disclose gifts and luxury trips from Republican donors. The justices faced no repercussions, and the donors deny any improper conduct.

“The Trump judges invented presidential immunity and then didn’t even bring treason into the equation,” said the Rhode Island Democrat. “The first mention of a president being able to commit crimes unhindered comes from this court, just as we have our first criminal presidential candidate.”