With End-Run Around High Court, Dems Should Be Careful What They Ask For

Senate Majority Leader Chuck Schumer announced Monday that he’s working with other Senate Democrats to strip former President Trump of the immunity he was granted by the U.S. Supreme Court on July 1.

"We Democrats will not let the Supreme Court's decision stand unaddressed," the New York Democrat said on the Senate floor.

"The Constitution makes plain that Congress has the authority to check the judiciary through appropriate legislation."

In one of its final decisions of the term, the high court ruled that former presidents can never be prosecuted for actions relating to the core powers of their office, and that more broadly, their official acts have at least a presumption of immunity.

At issue were Trump’s speeches and actions on Jan. 6, 2021, the day of the Capitol Hill riot.

Schumer said that he and his colleagues will work "on legislation classifying Trump's election subversion acts as unofficial acts not subject to immunity."

The Senate majority leader claimed it was important to be able to hold presidents accountable for actions that allegedly undermine democratic processes.

"We're doing this because we believe that in America, no president should be free to overturn an election against the will of the people, no matter what the conservative justices may believe," he said.

However, Carrie Severino, president of the Washington, D.C.-based Judicial Crisis Network, observed that presidents can be subject to impeachment even for exercising their official acts despite the court’s ruling, "and that is the constitutional check."

She told Newsmax TV Host Chris Salcedo that the high court’s presidential immunity decision was "a sensible drawing of a line" despite the hand-wringing and pearl-clutching coming from the left.

Severino, who clerked for Supreme Court Justice Clarence Thomas after law school, explained that as a practical matter and "for the vast majority of things a president does, they have to be able to move quickly, move with decisiveness, and not worry that they’re going to get hit as Trump has with a bevy of lawsuits — politically motivated after the fact by his political opponents."

Newsweek senior editor-at-large Josh Hammer had his doubts that Schumer’s scheme would pass constitutional scrutiny.

"Let’s see what the final text is, but the bill as described here is almost assuredly unconstitutional," said Hammer, who also serves as senior counsel for the Article III Project.

Severino told Salcedo that the Supreme court’s presidential immunity decision should have prompted a sigh of relief from former Presidents Barack Obama and current President Biden.

But here’s the thing: Even if the legislation Schumer eventually introduces is approved by the Senate (doubtful, given its 60-vote threshold), then passed by the House (even more doubtful), and meets constitutional challenges in the Supreme Court (also doubtful), it won’t do what Senate Democrats are wanting.

It won’t get Trump.

Article I, Section 9, Clause 3 of the U.S. Constitution provides that "No Bill of Attainder or ex post facto Law shall be passed."

An ex post facto law is a criminal statute that punishes actions retroactively.

In this case it would state that Trump no longer enjoyed immunity from criminal prosecution for actions he took 3-1/2 years ago.

Although Biden called the Supreme Court's presidential immunity decision a "dangerous precedent," he should embrace it — especially given his own questionable actions.

Assuming Schumer’s scheme is approved, the first person to whom it could possibly apply would be Biden.

Earlier this month a U.S. district court judge sitting in Kansas found that the Biden administration’s Title IX revisions are unconstitutional and violate federal law. They would expand "sex" to include "gender identity” in any school program that accepts federal funds.

Biden also reintroduced student loan "forgiveness" executive orders after the U.S. Supreme Court ruled that he lacked the authority to do so. Three weeks ago and on the same day two federal judges — one sitting in Missouri and the other in Kansas — ruled his actions illegal.

Now for the punchline: Both judges were appointed by Barack Obama.

In late May Biden reminded us of "the American principle that no one is above the law."

If Schumer gets his little scheme approved, Biden may find out how true that principle is.

As the adage goes: Be careful what you wish for; you might just get it.

Michael Dorstewitz is a retired lawyer and has been a frequent contributor to Newsmax. He is also a former U.S. Merchant Marine officer and an enthusiastic Second Amendment supporter. Read Michael Dorstewitz's Reports — More Here.