There is an interesting debate about the origins of the expression, “You can fool some of the people all of the time, all of the people some of the time, but you cannot fool all of the people all of the time.” Although often attributed to Abe Lincoln (and sometimes to P.T. Barnum), there appears to be no clear evidence Lincoln ever actually uttered those words and considerable evidence tracing the quote to earlier sources.

Whatever its origins, I must confess that the quote comes to mind when I see Senate Majority Leader Chuck Schumer’s smirk after he seems confident his latest pronouncement will fool at least some of the people—as when he blames the influx of millions of illegal aliens across our southern border on Donald Trump. Indeed, I find Schumer’s smirk nearly as annoying as Kamala Harris’s persistent cackling.

Image: Chuck Schumer grilling. (Deleted X tweet.)

Schumer’s latest effort to con the American people came in his denunciation of Monday’s Supreme Court decision (Trump v. United States) that a president’s “official acts” are immune from criminal or civil prosecution as “disgraceful.” According to Schumer: “[T]his is a sad day for America and a sad day for our democracy. The very basis of our judicial system is that no one is above the law.” His colleague, Senator Richard Blumenthal, added that the Court’s decision “grants him [Trump] a legal armor that no other citizen enjoys.”

One wonders whether either of these gentlemen has ever glanced into a mirror. Had they done so, they would have observed a citizen who enjoys a quite similar immunity from judicial prosecution for their official acts. As the website Congress.Com notes: Article I, Section 6, Clause 1 of the Constitution provides that “for any Speech or Debate in either House,” Senators and Representatives “shall not be questioned in any other Place.” The website explains:

[I]t is well established that the Clause serves to secure the independence of the federal legislature by providing Members of Congress and their aides with immunity from criminal prosecutions or civil suits that stem from acts taken within the legislative sphere. As succinctly described by the Court, the Clause’s immunity from liability applies even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes. This general immunity principle forms the core of the protections afforded by the Clause.

If a senator stood up on the Senate floor and—rather than proposing that the independence of the Supreme Court be undermined by packing it with additional members—simply revealed the home addresses of those justices he disapproves of and urged that patriotic Americans burn down their homes to intimidate them, neither the Supreme Court nor the Department of Justice could take any legal action in response. The first remedy would be a possibility that the senator might be removed from office by impeachment, and if that failed at the next election, constituents would have the option of electing someone else. However, the senator would be immune from prosecution for what would otherwise be blatant federal felonies.

I do not know how the lower courts will come out when they apply this new judicial guidance to the specific cases now pending before them. But even a cursory examination of some of the recent cases brought against former President Trump reveals the very serious risk of “lawfare“ prosecutions to undermine political opponents. There are nearly 100 U.S. Attorneys appointed by presidents from both political parties. Add to that the thousands of state and local prosecutors—not to mention the vast numbers of angry voters who feel passionately against an incumbent president and thus might bring the most frivolous civil lawsuits to tie the president up in litigation for most of his or her waking hours—and Monday’s decision makes eminent sense.

I am no fan of former President Trump. I have never voted for him. John McCain was my friend long before he ran for Senate, and the idea that anyone who bragged about sexually assaulting numerous women because they were powerful enough to get away with it would be elected even as a dog catcher still shocks me.

But when Senator Schumer asserts that the Court’s quite reasonable decision is “a sad day for our democracy,” I cannot help but lament that his partisan attacks seeking to undermine the independent Judicial Branch may be an even greater threat to our democracy than anything Donald Trump has thus far done.

Prof. Turner holds both professional and academic doctorates from the University of Virginia School of Law, where he taught for more than three decades prior to his 2020 retirement. The views expressed are personal.