Democrats used a Senate Judiciary Committee hearing Tuesday to rail against a Supreme Court decision that gave criminal immunity to presidents for official acts, which wiped out part of the allegations in the Washington case against Donald Trump related to his efforts to overturn the 2020 presidential election.
The 6-3 decision, written by Chief Justice John G. Roberts Jr., virtually guaranteed no trial would take place while Trump is the Republican nominee in the 2024 presidential election. But Democrats on Tuesday devoted their attention to the long-term impacts of the ruling, saying the opinion creates a dangerous opportunity for abuses of power, such as wielding the power of the Justice Department as part of the executive branch.
Senate Judiciary Chair Richard J. Durbin said the ruling was a “game-changing act of judicial fiat” that puts all future presidents above the law and will only increase the chances of future conflict between the political branches. The Illinois Democrat said Congress will have to wield its appropriations, oversight and legislative power if faced with a corrupt presidency.
“The Supreme Court has made it nearly impossible for the courts to hold a runaway president accountable. It will be left to the American people and Congress to try to hold the line because, as Justice Sotomayor noted in her dissent, ‘the President is now a king above the law,’” Durbin said.
Sen. Sheldon Whitehouse, D-R.I., one of the most outspoken critics of the conservative tilt of the court, said the decision strayed from the conservative legal doctrines that conservative justices have used to justify other decisions.
“There are several conclusions you can draw from this sorry episode. One is what laughably fake and disposable doctrines textualism and originalism are,” he said. “Trump v. United States was manufactured out of thin air. Nothing textualist or originalist about it. Doctrines of convenience.”
Republicans protested that their colleagues were misinterpreting the scope of the historic opinion. Sen. John Kennedy, R-La., took issue with Durbin’s characterization of the ruling and said the opinion makes clear that the president doesn’t have immunity when it comes to unofficial acts.
“It is inaccurate to say under Trump v. U.S. that a president of the United States has absolute immunity to do anything that he or she wants. That’s just not accurate,” Kennedy said.
Sen. Lindsey Graham of South Carolina brushed off the hearing as a way for Democrats to continue attacking a conservative Supreme Court with which they disagree. Graham, the top Republican on the committee, said it was “shameful” that Democrats were in essence accusing Roberts of creating a monarchy in the United States and that their effort to delegitimize the Roberts court seems to be unending.
“If we get in charge of this place, I promise you this attack on the court is going to stop. It will be over, and you will have lost the ability to try to take an independent branch of government and degrade it because you don’t like the outcomes,” Graham said.
The Supreme Court opinion stated that presidents have “absolute immunity” from federal charges for acts taken at the “core” of their constitutional duties and allowed for the possibility of a lesser immunity for official acts outside of that undefined core.
One of the expert witnesses at the hearing, Philip Allen Lacovara, who served as counsel to the Watergate special prosecutor, described the ruling as “profoundly wrong” and “profoundly dangerous.”
The court didn’t find any textual support for the decision, he said. And at no time before this year, no serious lawyer claimed there was immunity from criminal exposure for crimes committed in office, including those done allegedly in the performance of an official function, he said.
“It essentially licenses a president to abuse his power and to get away with it,” he said.
Michael Mukasey, a former attorney general, told the lawmakers that the opinion is “narrow” and “consistent with precedent and constitutional principles.”
“The ruling here was also modest in the sense that the court sensibly remanded the case to lower courts for them to consider in the first instance, in the normal course, how to distinguish what might be official acts from those that are not,” Mukasey said.
The district court judge overseeing the Trump criminal case in Washington has restarted the case after the Supreme Court ruling but has not set a trial date. The judge is now considering which allegations prosecutors can pursue, which might be off-limits and how to handle other outstanding issues.
Special counsel John L. “Jack” Smith has filed a slimmed-down indictment of Trump that excluded a portion of the allegations that the Supreme Court ruled could not be charged. Trump’s legal team has argued those changes were not enough and the remaining allegations should be considered immune as well.
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