President Joe Biden’s proposed Supreme Court-related “reforms” are part of a broader, unseemly attack on judicial independence, but conservatives should welcome one of those initiatives anyway.
Indeed, everyone should support a constitutional amendment, as Biden suggests, to relimit presidential immunity.
I firmly believe the July 1 high court decision in Trump v. United States, which decreed that presidents and former presidents are “presumptively” immune from criminal prosecution for acts within even “the outer perimeter of [their] official responsibility,” was one of the ten or twelve worst rulings in Supreme Court history.
Nowhere does the text of the Constitution expound upon immunity, and, as renowned conservative constitutional law professor Randy Barnett wrote in the Wall Street Journal, “Chief Justice John Roberts offered little, if any, originalist justification” for his majority opinion.
Roberts’ language itself should make conservatives wary. For decades conservatives rightly derided the court’s creation of a “right” to an abortion from an “extension” of “penumbras, formed by emanations” from other rights actually found in the Constitution. Now Roberts, with similarly diaphanous (non)adherence to actual text, discovers an “immunity” found nowhere in the Constitution and then presumptively extends it to the “outer limits” of a president’s duties. In other words, if a president can claim he was exercising anything within the utmost bounds of presidential authority, he could not be prosecutable even for acts that otherwise obviously would be criminal.
Quin Hillyer
Such a kingly, criminally unaccountable head of state, with sovereign rights supposedly emanating from the misinterpreted penumbras of several already-dubious court precedents, is the antithesis of the ethos that led American founders to separate from the British crown. While the Constitution clearly provides vast presidential discretion in the conduct of international diplomacy, there is nothing obvious in the charter’s description of a president’s domestic powers that lends itself to such sweeping claims of immunity.
For conservatives of a less theoretic inclination, though, let’s get practical. Consider four words: Potential President Kamala Harris.
To those who believe, as I do, that Harris is a dangerous radical, it should be frightening to think of putting her in the Oval Office with almost no fear of criminal liability. The Supreme Court’s decision could embolden her even more to misuse executive-branch powers while not worrying about consequences. As long as she maintains at least 34 out of 100 senators in her corner — a near-certainty — she would know she couldn’t be removed from office via an impeachment trial. Relieving her of post-presidential concerns about criminal charges could unleash a fury of epic ruthlessness.
Spend some time, if you will, reviewing videos of Harris “questioning” Supreme Court nominees Brett Kavanaugh and Amy Coney Barrett and then-Attorney General Jeff Sessions, or of her trying to blow up Kavanaugh’s hearings and his nomination. Her method is consistent: She launches into epic-length statements full of innuendoes and outright smears, making heavily ideological-political points divorced from actual constitutional law while accusing the nominee of being too political, all with an astonishingly sneering tone and a visage of vengeance.
All the allegations against Kavanaugh, she insisted, were “credible,” even though alleged witnesses flat-out said the stories weren’t true. She grilled Sessions about “consultations” with Russians when the entire scenario she was peddling was ludicrous. She all but accused Barrett of intending to fulfill a secret agenda to take health care away from poor people. And, back to Kavanaugh, Harris wasted two full question periods suggesting he had nefarious collusion with Trump’s legal team defending against the Russian conspiracy charges, only to let the questioning end with what her hometown paper called “a thud” because she actually divulged not a bit of incriminating information.
In other words, the smear was the point, not the actual record.
An unaccountable Harris, with the executive branch at her disposal to harass her enemies, would be a nightmare. Truthfully, any unaccountable president would be a nightmare. A constitutional amendment, even though difficult to pass, is needed to undo the damage the court created in Trump v. U.S.
The wording of such an amendment would need to be carefully crafted. Something such as this might do: “A president or former president enjoys presumptive immunity from criminal prosecution for actions taken pursuant to international diplomacy, but otherwise enjoys no automatic immunity from such prosecution. A president or former president is, however, entitled to interlocutory judicial review to assert such immunity in any particular case via a claim of having been exercising core presidential powers.”
Otherwise, conservatives, watch out. President Harris will run rampant.