In recent years, the Supreme Court’s super majority of extremist right-wing justices has issued rulings that overturned decades of precedent. These rulings, dramatically out of step with the views of most Americans include abolishing reproductive rights, gutting the Voting Rights Act, weakening gun safety and labor laws and effectively ending affirmative action admission programs at colleges and universities.
In the term completed at the end of July, the high court followed the same pattern of disregarding congressional legislation, years of judicial precedent and public opinion. These rulings included discarding the Constitution’s prohibition on insurrectionists running for public office, invalidating some charges against Jan. 6th rioters, allowing would-be mass murderers to purchase accessories that turn rifles into machine guns, approving racially gerrymandered congressional districts, criminalizing homeless people, legalizing bribery for state and local officials, and overturning the 40-year-old Chevron doctrine, jeopardizing environmental, climate, public health and work place safety regulations.
But to the shock of many legal scholars, the Supreme Court’s last ruling issued in the term held that presidents are entitled to absolute immunity from criminal prosecution for official acts, making it likely that future authoritarian presidents could engage in criminal acts with impunity, imperiling U.S. democracy. Between The Lines’ Scott Harris spoke with Lawrence Lessig, Roy L. Furman professor of law and leadership at Harvard Law School, who talks about his advice to Democratic presidential nominee Vice President Kamala Harris, about what action she could take to politically neutralize the Supreme Court’s dangerous presidential immunity ruling.
LAWRENCE LESSIG: In response to this decision, President Biden has called on Congress to propose a constitutional amendment to reverse it. Chuck Schumer, majority leader of the Senate, has proposed legislation which could largely reverse it. Supreme Court itself has said that Congress had the power to reverse immunity that was being granted by the Supreme Court. Those reversals would apply not to every president, regardless of whether he or she wanted it or not.
The point they made about Kamala Harris is that no president is forced to accept the gift the Supreme Court has given him or her in the form of immunity. They could say, I just waive that immunity. I’m never going to invoke that immunity.
So my argument was Kamala Harris, you know, maybe at the Democratic National Convention in her acceptance speech ought to say, “Look, thank you very much, Supreme Court, for this gift of immunity that you say is necessary for me to be able to do my job. I’m pretty sure I can do my job without committing any crimes, without getting any official actors or officials in my administration to commit crimes on my behalf. So therefore, I pledge right now that I will not invoke this immunity after I leave office.”
And that would put a challenge on Donald Trump to say whether he would invoke the immunity.
And then you have one person who says, “I promise to waive an immunity because I will put myself not above the law, but subject to the law,” and somebody else who says, “I will not promise to waive the immunity. I will keep myself above the law.”
I think the voters should be able to look at those two candidates and say, “Why do you need to be free to commit crimes or to have your administration commit crime in your behalf? Why do you think you need that?”
And my point about thinking about it in this politically competitive way is that I think that if Harris made that move, it would almost become necessary. You know, Donald Trump is already declaring he needs immunity. So I’m not going to imagine he’s going to do anything. So you can imagine it being a regular part of the campaign for president that a candidate would say, “Look, I waive this special extra immunity given to the president by the Supreme Court. I will not invoke immunity after I leave office, but claims that I’ve committed crimes beyond my official degrees. And that practice, if became a general practice, could, in effect, negate the significance of what the Supreme Court has done.”
Now I’m like, Harris can’t affect the immunity of anybody but Kamala Harris. So this is just a person waiving immunity for him or herself.
But I do think that we could build an expectation that everybody would do that. And when everybody begins to do that, then the Supreme Court’s extravagant gift of special protection for criminal acts by the president or through official acts of the president would just be irrelevant. It wouldn’t matter any more.
SCOTT HARRIS: Professor Lessig, have you heard from Kamala Harris’ campaign regarding your suggestion here, which I think is brilliant and could be quite useful in blunting this immunity for future presidents. That could be a very dangerous thing for this country. Have you heard from anybody?
LAWRENCE LESSIG: I’ve heard some people on the Hill who’ve found the idea intriguing and interesting. I think most people at this point are just really thinking about its political potential. And I think it obviously reinforces the framing around this campaign that she is trying to present. You know, she’s the prosecutor. He’s the felon. She as the prosecutor would be saying, “Look, I don’t think anybody should be above the law, and I myself won’t be above the law, period. Even if the Supreme Court wants to let me live above the law. I don’t accept that.” And challenge the other side. And that would reinforce the message.
And I think that’s why people on the Hill have been intrigued by the idea, because they think that it would strengthen the campaign.
My real interest is not so much the campaign. Although, you know, I don’t want to hide the fact I’m a Harris supporter. My interest is just if we could create this as a regular part of running for president, we could just solve this problem without, you know, any of the elaborate mechanisms of amendment or even a statute by Congress.
Listen to Scott Harris’ in-depth interview with Lawrence Lessig (18:50) and see more articles and opinion pieces in the Related Links section of this page.
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