Senators on the Judiciary Committee debated Tuesday over the Supreme Court’s recent ruling giving presidents some immunity from criminal prosecution, with legal experts suggesting a route around the precedent would be in the form of a constitutional amendment.
Senate Judiciary Committee Chairman Richard J. Durbin, Illinois Democrat, said it was up to Congress to look at legislation following the 6-3 ruling in July where the Supreme Court’s conservative majority ruled presidents have absolute immunity for core presidential functions, presumed immunity for other official conduct and no immunity for nonofficial acts.
“Congress will have to assert its power,” said Mr. Durbin. “The Supreme Court has made it nearly impossible for the courts to hold a runaway president accountable.”
Democrats have claimed the ruling in Trump v. United States was a win for former President Donald Trump in his move to delay criminal proceedings brought against him by special counsel Jack Smith.
A lower court now will determine which charges are applicable, making any trial before the Nov. 5 election impossible.
Sen. Sheldon Whitehouse, Rhode Island Democrat, said the Supreme Court can act quickly when it wants to — pointing to its unanimous decision last winter to keep Mr. Trump on the Colorado ballot.
It took the justices more than two months to issue the immunity holding.
“Trump v. United States was manufactured out of thin air,” Mr. Whitehouse said, suggesting it was out of convenience that the conservative majority issued the opinion.
Senate Democrats have pushed a No Kings Act so presidents and vice presidents don’t have immunity from criminal law.
And President Biden has suggested Congress should adopt a constitutional amendment to limit a president’s power.
Both aspects — legislation and a constitutional amendment — were mentioned during Tuesday’s committee hearing as the senators quizzed law professors and historians about the Supreme Court’s holding and ways to address it.
It’s doubtful either option would pass, given the Senate filibuster and the high threshold of a two-thirds vote in each chamber of Congress to adopt a constitutional amendment.
Republicans, meanwhile, dismissed Democrats’ interpretation of the ruling. They said the justices struck a balance.
Sen. John Kennedy, Louisiana Republican, said the court was careful to craft precedent that applied beyond Mr. Trump.
“The opinion is not just about the litigants in front of the court — it’s about future presidents,” he said.
Sen. Lindsey Graham, South Carolina Republican, said the Democrats are simply unhappy with the Supreme Court’s recent rulings on guns and abortion so are looking at ways to undermine it.
“I don’t know when we are going to hit bottom — but I hope we are close,” Mr. Graham said. “This hearing is designed to continue an attack on the court because you don’t like their rulings.”
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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