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immunity case
Schumer Introduces 'No Kings Act' to Undo Supreme Court's Presidential Immunity Ruling
"Congress has an obligation to act as a check and ensure that the president does not become a king," an expert said in praise of Schumer's move.
Aug 01, 2024
U.S. Senate Majority Leader Chuck Schumer on Thursday introduced legislation that would establish that the president and vice president don't have immunity from prosecution—an effort to overturn the Supreme Court's recent ruling in Trump v. United States that grants presidents broad immunity when they break the law.
The No Kings Act, which has 34 co-sponsors from the Senate's Democratic caucus, would stipulate that Congress, and not the Supreme Court, determines whom federal law applies to. It comes as the latest Democratic response to the July 1 ruling, decided 6-3 along ideological lines, that gave former president and current Republican nominee Donald Trump "absolute immunity" for "core" presidential duties and "presumptive immunity" for other official acts.
"Given the dangerous and consequential implications of the court's ruling, legislation would be the fastest and most efficient method to correcting the grave precedent the Trump ruling presented," Schumer (D-N.Y.) said in a statement.
"With this glaring and partisan overreach, Congress has an obligation—and a constitutional authority—to act as a check and balance to the judicial branch," he added.
Progressive advocacy group Public Citizen praised Schumer for introducing the bill.
"The framers of the Constitution never intended the executive branch to be immune from legal recourse, and they would have seen this decision as an invitation for presidents to become tyrants," Lisa Gilbert, the group's co-president, said in a statement. "Congress has an obligation to act as a check and ensure that the president does not become a king."
The Founders were explicit: no man in America shall be a king.
But the MAGA Supreme Court threw out centuries of precedent and anointed Trump and subsequent presidents as kings above the law.
That's why I'm introducing the No Kings Act to crack down on this dangerous precedent.
— Chuck Schumer (@SenSchumer) August 1, 2024
The Supreme Court's immunity decision caused outrage among Democrats, who viewed it as blatantly partisan—three of the six assenting justices were appointed by Trump, and all six were appointed by Republicans—and a threat to democracy, given the way it could erode accountability in the country's highest office. In dissent, Justice Sonia Sotomayor wrote that "the president is now king above the law."
The impact of the immunity ruling on the four criminal cases against Trump—he's been convicted in one and another has since been dismissed—is not fully clear but it's generally believed to strengthen his defense and complicate prosecutors' efforts.
Last week, Rep. Joseph Morelle (D-N.Y.) proposed a constitutional amendment to establish that "there is no immunity from criminal prosecution for an act on the grounds that such act was within the constitutional authority or official duties of an individual." The proposal has 70 Democratic co-sponsors.
On Monday, President Joe Biden, a Democrat, called for sweeping Supreme Court reforms—a monumental move that progressives had pushed him to make for years—in an op-ed in The Washington Post. He started his argument, which included a call for term limits and a constitutional amendment, by citing the immunity ruling. Vice President Kamala Harris, the presumptive Democratic nominee, quickly backed the plan.
None of these efforts have a strong chance of passage in the short term. Constitutional amendments generally require a two-thirds majority in Congress and ratification by three-fourths of state legislatures.
The No Kings Act wouldn't face such a high bar, but passage is unthinkable so long as the Republicans control the House of Representatives. Moreover, if passed, the Supreme Court would in all likelihood strike the bill down.
To forestall that issue, Schumer has written into the bill "jurisdiction stripping" measures that would remove the Supreme Court's authority to render the legislation unconstitutional, and allow only lower courts in the District of Columbia to handle a legal challenge. Such jurisdiction stripping has been seldom used in the past and would likely be highly controversial.
Jurisdiction stripping has never happened till it does, and is a false promise until it isn't. https://t.co/lGYfLxdyQs
— Samuel Moyn 🔭 (@samuelmoyn) August 1, 2024
Even if the Democrats don't see immediate legislative results, the messages that their proposals send could resonate with voters. Polling from Navigator Research released on Tuesday indicated that a solid majority of Americans disagreed with the Supreme Court's immunity decision.
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With Trump v US, Roberts Fully Reveals His Ideological Extremism
The opinion proves beyond a reasonable doubt that we do, in fact, have Trump judges. And Roberts is the quintessential example.
Jul 06, 2024
In November 2018, a public spat broke out between former President Donald Trump and Supreme Court Chief Justice John Roberts. It began when District Court Judge Jon Tigar of San Francisco overturned the Trump administration’s new restrictions on political asylum, leading the president to dismiss Tigar as an “Obama judge.” In response, Roberts issued a statement to The Associated Press, declaring, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. The independent judiciary is something we should all be thankful for.”
Determined to have the last word, Trump tweeted: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”
The exchange with Trump bolstered Roberts’ image as an institutionalist committed to the fair and impartial administration of justice. But that image was and always has been a chimera.
Apart from Roberts’ lack of fidelity to constitutional text, history, and precedent, his opinion is conceptually sloppy, poorly organized, and incomplete.
Roberts’ 6-3 majority opinion in Trump v. United States, which accords Trump broad immunity from criminal prosecution for his “official” acts as president, proves beyond a reasonable doubt that we do, in fact, have Trump judges. And Roberts is the quintessential example. He is the leader of a reactionary judicial junta hellbent on rolling back the Voting Rights Act, gutting reproductive freedom, dismantling the New Deal, and establishing an imperial presidency that is beyond legal accountability.
The immediate effect of Roberts’ ruling is that Special Counsel Jack Smith’s election-subversion indictment of Trump will be stripped of many of its most important allegations, and any trial on the indictment will be delayed until well after the November election. If Trump wins, as he likely would if the election were held today, he would be able to order his new attorney general to dismiss the case, and do the same with the Mar-a-Lago documents prosecution.
Longer term, as Justice Sonia Sotomayor argued in a blistering dissent, Roberts’ opinion will have more dire consequences, as it “invents an atextual, ahistorical, and unjustifiable immunity that puts the president above the law.” The opinion is also, according to Boston University School of Law professor Jed Shugerman, a “constitutional embarrassment… incoherent… [and] hard to decipher.”
But this is the Supreme Court, and decipher it we must.
Distilled to its essence, Roberts and his like-minded benchmates held that the separation of powers mandates immunity. Without presidential immunity, Roberts proclaimed, the executive branch would be unable to take the “bold and unhesitating action” the country demands from its commander-in-chief for fear that his successor would target him for prosecution, turning the executive branch into one that “cannibalizes itself” with every change of administration. This is a novel interpretation of the Constitution, which does not contain text providing for presidential immunity from criminal prosecution. It also deviates dramatically from the Founding Fathers’ vision of a constitutional republic. In Federalist 69 and 77, two of the most seminal of the founding-era texts, Alexander Hamilton wrote that the presidents of the then-new United States would not have unlimited power but could, if needed, be prosecuted in the ordinary course of law. The entire point of the revolution was to rid the fledgling nation of an absolute monarch and enshrine the principle that no one is above the law.
Contrary to this sacred tradition, Roberts’ ruling endows Trump and future presidents with a monarchical kind of immunity, which he divides into three categories:
- Absolute immunity for exercising the “core powers” of the presidency that are enumerated in Article II of the Constitution. These involve such matters as, in Roberts’ words, “commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and appointing public ministers and consuls, the Justices of this Court, and Officers of the United States.” Henceforth, actions taken pursuant to a core power can never be prosecuted.
- Presumptive immunity for “official acts” other than those considered core powers that are undertaken within the scope of the president’s official responsibilities and the “outer perimeter” of those responsibilities. The presumption can be rebutted, but only if the government can demonstrate that a given criminal prosecution “does not pose [any] dangers of intrusion on the authority and functions of the Executive Branch.”
- “Unofficial acts” for which there is no immunity.
This distinction between official and unofficial acts seems to be designed to rescue Trump from the clutches of the special counsel. Prior to the Roberts decision, the Supreme Court had never been called upon to review a criminal prosecution of a former president. Richard Nixon came close, but he had the good sense and just enough residual patriotism to resign and accept a pardon from Gerald Ford to avoid an indictment.
Roberts based his ruling in large part on a 1982 decision involving a wrongful termination lawsuit against Richard Nixon brought by a federal contractor. Nixon v. Fitzgerald held that presidents are entitled to “absolute immunity” in civil cases seeking damages arising from their official acts and “the outer perimeter” of their official duties. But Nixon v. Fitzgerald was explicitly limited to civil litigation, and the concurring and dissenting opinions in that case emphasized that the court’s decision had no application to criminal law. Now, courtesy of Roberts and his collaborators, Nixon v. Fitzgerald is the law of the land in both civil and criminal litigation.
Apart from Roberts’ lack of fidelity to constitutional text, history, and precedent, his opinion is conceptually sloppy, poorly organized, and incomplete. For example, Roberts concluded that Trump’s discussions with his then-acting attorney general and members of the Department of Justice about overturning the 2020 election were official acts entitled to immunity, but he declined to decide whether Trump’s discussions with Vice President Mike Pence are similarly entitled to protection or unofficial conduct undertaken as a candidate for office. That task—and the job of evaluating every other allegation set forth in Smith’s 45-page indictment—will be assigned to District Court Judge Tanya Chutkan when the case is sent back to her.
Even with the clearest guidance from the Supreme Court, the assignment of separating the official acts contained in Smith’s indictment from the unofficial ones would be time-consuming and daunting. But nowhere does Roberts offer a working definition of an unofficial act. Is an unofficial act one related to a political campaign, or one that is personal or private in nature, as Justice Amy Coney Barrett suggested in her concurring opinion? Although Roberts acknowledged that “distinguishing the president’s official actions from his unofficial ones can be difficult,” the closest he came to a definition is a line describing an unofficial act as one that is “manifestly or palpably beyond [the president’s] authority.”
Assuming that Chutkan can cut through the dense legalese of the majority opinion, she also will have to contend with the section of the ruling where Roberts holds that, “in dividing official from unofficial conduct, courts may not inquire into the president’s motives.” Because motive is often the key to proving criminal intent and intent is an element of the crimes alleged against Trump, it’s hard to see just how much of Smith’s case could survive even if Trump loses in November.
All that has Sotomayor and the dissenting justices outraged. “In fact,” Sotomayor argued in her dissent, “the majority’s dividing line between ‘official’ and ‘unofficial’ conduct narrows the conduct considered ‘unofficial’ almost to a nullity. It says that whenever the president acts in a way that is ‘not manifestly or palpably beyond [his] authority,’ he is taking official action.”
Forecasting nothing less than the demise of American democracy, Sotomayor continued:
The president of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
As the chief justice, Roberts could have assigned any other concurring member of the court to draft the majority opinion. That Roberts chose to write the opinion himself rather than farm it out to Clarence Thomas or Samuel Alito—both of whom should have recused themselves due to the conduct of their wives as outspoken supporters of the MAGA movement—or to one of the three younger justices appointed by Trump, is a testament to Roberts’ ego and a final and full revelation of his ideological extremism.
Roberts has spent his legal career as a right-wing political operative, dating back to his stint as a clerk for the late Supreme Court Chief Justice William Rehnquist, continuing in his work for the Reagan and Bush administrations, and into his role as a behind-the-scenes GOP “consultant, lawsuit editor, and prep coach for arguments before the Supreme Court” in the run-up to Bush v. Gore, the case that decided the 2000 presidential election.
His 2013 majority opinion in Shelby County v. Holder, which eviscerated the Voting Rights Act, ranks among the worst decisions in the Supreme Court’s history. His opinion in Trump v. United States deserves the same infamy.
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Trump Gets Immunity as Christmas in July Gift From Supreme Court
We cannot minimize the string of lies that emanated from Trump’s mouth and the danger that all of his positions represent for the diverse groups that form the Biden coalition, for the entire country, and democracy itself.
Jul 05, 2024
The Supreme Court ruling that extends immunity to former U.S. President Donald Trump for acts committed in his official capacity, during the attempt to impede the certification of President Joe Biden’s victory in 2020, is another powerful reason to fear his return to the White House in January 2025, should he win in November—regardless of Biden’s poor performance in the CNN debate.
The conservative majority on the highest court is treating Trump like a monarch, conceding unprecedented protections to him. Whatever he does in his official capacity, he cannot be touched, even if his actions involve persecuting his political opponents or implementing a twisted plan for raids and mass deportations around the country.
Without immunity Trump has done whatever he wants; image now that he has it, at least partially. A demagogue, liar, opportunist, and vindictive person who sees the presidency as a vehicle to enrich himself; to get even with those who, in his mind, have persecuted him; and to push for an extremist agenda on various matters, including immigration, with no regard for civil and human rights.
Before the multitude that is practically calling for Biden’s head continues hyperventilating, they must turn their gaze to Trump, remembering all of the bad things he has done as president and plans to do if he wins on November 5.
Trump not only has Project 2025, the road map to execute a series of extreme public policies, including on immigration, at his disposal, but now he has the blank check of immunity to do whatever he wants to implement his macabre plans, as long as it is in an official capacity.
I want to make it clear that, indeed, Biden had an unfortunate performance in the debate and I do not know if the leader will remain in the contest, or another figure will emerge.
But we cannot minimize the string of lies that emanated from Trump’s mouth and the danger that all of his positions represent for the diverse groups that form the Biden coalition, for the entire country, and democracy itself.
The editorial boards of some papers have asked Biden, at 81 years old, to remove himself from the contest for the good of the country and his party because he is very fragile, elderly, and doesn’t have what it takes to confront the “young buck,” Trump, at age 78. As far as I know, those same editorial boards have not asked Trump to leave the race for the good of his party and the country, because he is elderly and also a convicted felon whom a jury has found liable in court of sexually assaulting a woman.
I recognize that if Biden remains in the contest, he has a difficult task to appeal to voters who were already undecided prior to the debate. But before the multitude that is practically calling for Biden’s head continues hyperventilating, they must turn their gaze to Trump, remembering all of the bad things he has done as president and plans to do if he wins on November 5.
Perhaps the Supreme Court’s immunity decision will pull them out of their hysteria and remind them of the alternative. This week that the United States celebrates 248 years of the Declaration of Independence, because the colonies wanted to free themselves from the yoke of an English king, it’s pretty ironic that, as Justice Sonia Sotomayor wrote in her dissent to the majority decision, “In every use of official power, the president is now a king above the law.”
A “king” who plans mass deportations based on lies about immigrants. Among all of the lies Trump pronounced during the debate, those related to immigration were the most significant: that Biden “opened” the border; that the “largest number of terrorists” in history are crossing the border; or that “people are coming in and they’re killing our citizens at a level that we’ve never seen.”
Study after study shows that undocumented immigrants commit fewer crimes than people born in the United States and, as a coalition of national Latino leaders wrote in a joint declaration after the debate, “The facts are that since the last president left office, violent crime is down substantially across the country and that immigrants are associated with reductions in crime in American communities coast to coast.”
“As we know from scripture, those in glass houses should not throw stones, so a person convicted of 34 felonies pointing the finger at the alleged and misleading criminality of others is one of the ironies of this election year,” the joint statement concluded.
And that person in a glass house, who would have immunity to do whatever he likes if he is elected, is the alternative to an elderly, but honorable Biden. Like my mother said, “Viejos los cerros y reverdecen.” The hills are old, and they can still be green.
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