Senate Judiciary lawmakers on Tuesday foresaw vastly different scenarios for how the Supreme Court’s decision granting former presidents broad immunity from prosecution will shape the future of the office.
To the committee’s Democrats, the July decision greenlights presidents to take any number of illegal actions without facing risk of criminal charges. They want voters to take the decision into account this fall when they cast ballots for president.
The committee’s Republicans see the decision as hindering what they describe as politically motivated prosecutions of former President Trump, and argue the hearing was an attack on the high court by Democrats unhappy with a ruling that didn’t go their way.
The court determined that presidents are immune from prosecution for any actions they take as part of their core constitutional responsibilities. For all other official actions they are presumptively immune, while they get no protection for private acts.
“What does all this mean?” asked Chair Dick Durbin (D-Ill.). “It means that any sitting president may hide behind their office for protection from prosecution for even the most egregious forms of wrongdoing.”
“It means effectively condoning Richard Nixon’s claim that quote, ‘When the president does it, that means it’s not illegal.’ In fact, most of the conduct at the heart of Nixon’s Watergate scandal, the obstruction of justice, wiretapping, cover-up and the misuse of government agencies could be described as official actions that would be presumptively immune under this court decision,” he added.
Democrats referenced that Nixon quote in naming the hearing, which was titled “When the President Does It, that Means It’s Not Illegal’: The Supreme Court’s Unprecedented Immunity Decision.”
“The hearing title … is suggesting that the court somehow has unleashed upon the American people an evil force. I don’t buy that one bit. I think the court is dealing with a case before it in a rational way,” said Sen. Lindsey Graham (R-S.C.), the panel’s ranking member.
The court’s decision was a blow to special counsel Jack Smith’s election interference prosecution of Trump, which sparked the former president’s claim he is immune from charges based on his presidential duties.
The Supreme Court directed Smith to cut from his case all portions referencing Trump’s pressure campaign at the Justice Department, where the then-president threatened to replace the department’s leadership team with people who would investigate his baseless claims of election fraud.
The decision also limits prosecutors’ ability to use evidence related to an official act to support charges for conduct that isn’t a part of a president’s official responsibilities. Justice Amy Coney Barrett, a Trump appointee, questioned the logic of that part of the decision in her own concurrent opinion.
It also bars prosecutors from questioning a president’s motive in complicated cases where prosecutors must show intent.
Philip Allen Lacovara, a former deputy solicitor general who also served as counsel on the Watergate investigation, called the decision in his testimony “profoundly wrong.”
“This is a dangerous decision, not simply an erroneous one. It essentially licenses the president to abuse his power and to get away with it,” he said.
Republican-invited witnesses did not echo Graham’s language in calling the charges facing Trump “politically motivated legal garbage.” But they defended the court’s decision as one that — like Chief Justice John Roberts said — was designed to protect the power of the presidency.
Jennifer Mascott, a professor at the Catholic University of America, called it a “modest decision” while former George W. Bush Attorney General Michael Mukasey said it would prevent “any subsequent president who would have to look over their shoulder to assure that his decisions are not subject to possible criminal prosecution.”
Witnesses invited by Democrats described a decision with far-reaching consequences.
“The potential abuses of official power that are made possible by the court’s ruling and the neutering of Congress’s ability to act are alarming,” said Mary McCord, a former high-ranking, Obama-era Justice Department official who teaches at Georgetown Law.
She cited a number of possibilities, including a president directing the IRS to baselessly investigate political opponents or launching FBI investigations into journalists. That was in line with the fears of Justice Sonia Sotomayor, who in her own dissent said the decision could be used to allow a president to assassinate a rival or accept a bribe.
McCord also said the decision “hamstrings” prosecutors by limiting what evidence tied to official acts they can present, making it difficult for judges to parse what would be official and unofficial acts.
Mukasey at several turns said that the worst-case scenarios raised by critics of the decision were beyond what is allowed under the ruling, accusing some critics of having “a complete lack of common sense.”
“I don’t think there’s any sense in which in order to do something facially unlawful like assassinating a political rival or organizing a coup could be considered an official act consistent with the majority opinion,” he said, referencing a footnote that suggests a president could be prosecuted for taking a bribe to secure a pardon.
He offered another “less dramatic, but nonetheless equally far-fetched” example: that a president could order the military to steal a tie he wished to wear to the State of the Union address.
“Yes, he’s commander in chief of the armed forces. But shoplifting is not among the prerogatives that he has to order,” Mukasey said.
That struck a nerve with Sen. Peter Welch (D-Vt.) who said the hypothetical “really diminishes the importance” of the conversation, asking McCord to weigh in.
“It opens the door to the very types of activities that my colleague, Judge Mukasey, agrees should not have immunity,” she said of the court decision.
Welch also pushed back on the characterization of the decision as a modest one designed to protect the independence of the presidency.
“My concern is the rule of law is being whittled away. My concern is that constitutional freedoms are in the process of being whittled away. What’s been whittled away are the checks and balances that are the core of our constitutional system,” he said.
“And Mr. Chairman, what’s being whittled away is the Article 1 responsibility of Congress to enforce the rule of law.”