09.24.24

Durbin Questions Witnesses During Senate Judiciary Committee On Supreme Court Ruling In Donald Trump Immunity Case

WASHINGTON - U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, today questioned witnesses during a Senate Judiciary Committee hearing entitled "'When the President Does It, that Means It's Not Illegal': The Supreme Court's Unprecedented Immunity Decision." The hearing explored the ramifications of the Supreme Court's ruling in Trump v. United States. Durbin began by questioning Mary McCord, Executive Director of the Institute for Constitutional Advocacy and Protection, a Visiting Professor of Law at Georgetown University Law Center, and a former Department of Justice (DOJ) official about the Supreme Court majority opinion in Trump v. United States, which established a framework for determining presidential immunity. In the framework, the justices stated that there is no immunity for unofficial acts; but evidence of immunized official conduct is inadmissible to secure convictions for prosecutable conduct, such as unofficial acts.

"Professor McCord, as a former prosecutor, could you walk us through what prosecutors need to establish to successfully secure convictions, and exactly how this prohibition on evidence in Trump v. United States would prevent prosecutors from doing so?" Durbin asked.

Professor McCord responded that a prosecutor must prove beyond a reasonable doubt "every element of the offense charged." The majority's opinion in Trump v. United States will hamstring prosecutions of conduct that the opinion does not immunize by prohibiting the introduction of evidence of official acts that would "help secure [a President's] conviction, even on charges that purport to be based only on [their] unofficial conduct." In Professor McCord's response, she referenced Justice Barrett's concurrence, which argued that, "[t]he Constitution, of course, does not authorize a President to seek or accept bribes…[y]et excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution."

Durbin continued, "Justice Barrett went on to argue that the majority's concern that 'allowing into evidence official acts for which the President cannot be prosecuted may prejudice the jury' is already addressed by the rules of evidence, which 'are equipped to handle that concern on a case-by-case basis.' Do you agree with that?"

Professor McCord responded that she agreed. She continued to say, "that includes when evidence might be prejudicial than probative."

Durbin then asked Philip Lacovara, a former Deputy Solicitor General of the United States for criminal and national security matters and Counsel to the Watergate special prosecutor, about finding the basis of presidential immunity in the Constitution.

Mr. Lacovara replied that "this is one of the great ironies of the decision by Chief Justice Roberts." He continued to say, "it's not just a question of not being able to find authority in the text of the Constitution-any form of immunity… for commission of crimes by a president-the Constitution clearly says the opposite. The president is subject to impeachment… [the] text [of the Constitution] goes onto to say, 'but the party convicted, that includes the president, should nevertheless be liable and subject to indictment, trial, judgement, and punishment according to law.'" He states that the framers of the Constitution clearly demonstrated that the president is subject to the normal course of law.

Durbin concluded the hearing by stating, "Holding a hearing on the Supreme Court decision is almost routine in this committee… History will judge that it was the right thing to do in light of the gravity of this decision. And secondly, questioning the ethics of the Supreme Court happens to be our responsibility under the Constitution."

Video of Durbin's questions in Committee is available here.

Audio of Durbin's questions in Committee is available here.

Footage of Durbin's questions in Committee is available here for TV Stations.

On July 1, the Supreme Court's rightwing supermajority ruled that not just Donald Trump-but also future presidents-may be immune from abusing the levers of government to overturn an election or engage in other misconduct. The Court held in a misguided 6-3 decision that "the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts."

Durbin previously condemned the ruling and announced this hearing, describing the decision as "judicial activism unmoored from the text of the Constitution and intentions of our framers" that "Congress cannot turn a blind eye to."

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