Democrats may succeed in limiting Donald Trump's immunity despite his recent Supreme Court victory, a legal analyst has told Newsweek.
Democrats fear that, if Trump is elected president in November, he will act with impunity. Senate Majority Leader Chuck Schumer announced on Monday that Senate Democrats will work on a bill to limit presidential immunity.
Some legal commentators have suggested that Democrats cannot override the Supreme Court and that any act passed will have no legal effect.
However, New York University law professor, Stephen Gillers, told Newsweek that the president's power comes from statute as well as the constitution and that Democrats may be able to limit Trump's power.
"The Supreme Court said that when the president's power derives from the constitution, he has absolute immunity. Legislation cannot overrule that," he said.
"However the president also derives power from statutes. Congress may be able to draft laws that negate what the court called the president's presumptive immunity when exercising non constitutional powers that depend only on statutory authority."
Gillers said it would still be a difficult task to write the act so that Trump cannot successfully defeat it with a court challenge.
"Although the drafting will not be easy, under the court's own rationale, Congress has the power to do this."
"One way to attempt it is to include negative language in legislation—generic or specific language that says what the president may not do using the powers in the particular legislation," Gillers said.
The Supreme Court ruled 6-3 on July 1 that presidents have broad immunity for official acts. It also ruled that official acts cannot be used as evidence if taking a case against a president for unofficial acts.
Trump was indicted on four counts of allegedly working to overturn the results of the 2020 election in the run-up to the Jan. 6, 2021 riot at the U.S. Capitol. The presumptive Republican presidential nominee has pleaded not guilty and has said the case is part of a political witch hunt. The case was frozen while the Supreme Court considered the presidential immunity issue.
Newsweek sought email comment on Thursday from Donald Trump's attorney.
Schumer said Democrats are working on a bill to designate Trump's alleged attempts to undermine the 2020 election as "unofficial acts" and therefore not included in the recent Supreme Court case.
On the Senate floor on Monday, Schumer said the Supreme Court had got it wrong.
"They incorrectly declared that former President Trump enjoys broad immunity from criminal prosecution for actions he took while in office. They incorrectly declared that all future presidents are entitled to a breathtaking level of immunity so long as their conduct is ostensibly carried out in their official capacity as president," Schumer said.
fairness meter
To Rate This Article
About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more
