Democrats in the U.S. are pursuing multiple attempts to overturn the U.S. Supreme Court’s landmark decision on presidential immunity from criminal prosecution, driving up messaging on what the party hopes will become a key election issue.
Senate Majority Leader Chuck Schumer on Thursday introduced legislation, dubbed the No Kings Act, that would try to invalidate the ruling by declaring that presidents are not immune from criminal law and clarifying that Congress, not the nation’s highest court, determines to whom federal criminal law is applied.
“Congress must use all its tools to restore trust and accountability to the highest court in the land,” Schumer said on the Senate floor.
The Supreme Court’s stunning ruling on July 1 said presidents have broad immunity from criminal prosecution for actions taken within their official duties — a decision that threw into doubt the federal criminal case against Republican former president Donald Trump for his efforts to overturn his 2020 election loss.
Democrats, echoing the court’s liberal minority, have warned the ruling sets a dangerous precedent that would allow future presidents — including Trump if he wins this year’s election — to commit criminal acts with impunity under the guise of official business.
Earlier this week, U.S. President Joe Biden announced his support for a constitutional amendment that would invalidate the immunity ruling, as part of a suite of proposed reforms to the court that include 18-year term limits for justices and an enforceable ethics code.
Adding an amendment to the U.S. Constitution is a tall order, however. In addition to needing the approval of at least two-thirds of both chambers of Congress, an amendment also needs to be affirmed by three-quarters of the 50 state legislatures.
Schumer said the law, if passed, would remove the Supreme Court’s jurisdiction over hearing appeals on presidential immunity and give Congress the final word on the matter, “which the Constitution explicitly empowers Congress to do.”
“Make no mistake about it: we have a very strong argument that Congress, by statute, can undo what the Supreme Court does, that does not require a constitutional amendment,” he said.
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He said legislation would be the “fastest and most expedient method” of overturning the immunity ruling. However, he did not give a timeline for when a vote would be held. The Senate won’t reconvene until September after a five-week recess.
Republicans in Congress have already said they have no interest in supporting the Democrats’ cause. Democrats narrowly control the Senate but need to secure at least 60 votes to overcome filibuster rules and pass legislation — meaning nine Republicans at minimum must vote with all Democrats.
Speaking about Biden’s proposal, Senate Republican Leader Mitch McConnell said that Biden’s proposal would “shred the Constitution.”
U.S. House Speaker Mike Johnson, who himself leads a narrow Republican majority in the House but oversees what bills are voted on and when, called Biden’s proposals a “non-starter.”
Both McConnell and Johnson, along with other Republicans, have voiced support for the court’s immunity ruling, arguing presidents should be allowed to perform their duties without fear of prosecution.
Democrats have argued the 6-3 conservative makeup of the court — including three justices appointed by Trump — does not reflect the will of the American people. They primarily cite the overturning of Roe v. Wade and the constitutional right to an abortion, but the immunity ruling has become another example they point to.
They have also seized on ethical allegations against some of the right-leaning justices — particularly Justice Clarence Thomas, who has been accused of accepting lavish gifts from conservatives with cases before the court, and Justice Samuel Alito, who has flown politically charged flags outside his residences.
Vice-President Kamala Harris, who is running against Trump in the November election, said earlier this week Biden’s proposed reforms are needed because “there is a clear crisis of confidence facing the Supreme Court.”
The non-partisan Pew Research Center said last year that public opinion of the court has fallen to a historic low, with just 44 per cent of Americans surveyed expressing a favourable view.
The title of Schumer’s bill, which he said has over two-dozen Democratic co-sponsors, echoes Biden’s comments hours after the ruling that “there are no kings in America — no one is above the law.”
It also harkens back to Justice Sonia Sotomayor’s dissent in the case, in which she said that “in every use of official power, the President is now a king above the law.”
In the ruling, Chief Justice John Roberts wrote for the majority that “our constitutional structure of separated powers, the nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.”
But Roberts insisted that the president “is not above the law.”
Trump has sought to use the ruling to invalidate the other criminal and civil cases against him, including his conviction in New York on 34 felony counts of falsifying business records to cover up a hush money payment during his 2016 presidential campaign. Some of the charges related to reimbursement payments he made after he was elected to the White House.
The U.S. Justice Department’s election subversion case against Trump alleges the former president tried to pursue multiple avenues while in office to overturn his loss to Biden, including pressuring Justice Department officials and supporting a scheme to submit false slates of his electors to Congress. Those actions are submitted as evidence to support charges of conspiracy to defraud the U.S. and obstruct Congress from performing its official duty of certifying the election.
But the Supreme Court ruling determined at least some of those actions, particularly asking successive attorneys general to investigate allegations of fraud and threatening to install a loyalist as head of the Justice Department, could be considered official acts and shouldn’t be prosecuted.
The judge overseeing the case, Tanya Chutkan, now has now weigh both sides’ arguments for what evidence can now be included in the indictment, which could see at least some of the charges get withdrawn or dismissed entirely.
—With files from the Associated Press
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