The US Senate Judiciary on The President’s License to Kill

Ahmed Elbasyouny

Indiana University Maurer School of Law

On September 25, the powerful, Democrat-controlled US Senate Judiciary Committee convened a critical hearing to address the recent US Supreme Court ruling on presidential immunity. The hearing's title, When the President Does It, That Means It’s Not Illegal, invokes President Nixon's infamous post-Watergate remark about presidential immunity. While the hearing fell short of clarifying the confusing case, the Committee is not entirely at fault; the hearing ultimately exposed significant disagreement on the decision’s scope and deep uncertainty about its consequences. Below, I sketch the case and outline the key takeaways from the hearing.

Trump v. The United States

In the context of Counsel Jack Smith's investigation into former President Trump’s role in attempting to overturn the 2020 US presidential election and the January 6 attacks on the US Capitol, the Supreme Court issued a landmark 6-3 decision on presidential immunity in July 2024.

The decision established that presidents enjoy absolute immunity from criminal prosecution for actions within their core constitutional powers (e.g., pardon power) and presumptive immunity for official acts when power is exercised in conjunction with Congress. Presumptively immune actions remain prosecutable, but a burden is placed on the prosecution to demonstrate that a trial would not impact “the independence and the effective functioning of the Executive”. The Court found that no immunity applies to private actions taken while in office.

The Court ruled that certain actions by Trump, such as leveraging the Department of Justice (to overturn the election) are presumptively immune, directing the D.C. Court to use this framework to decide on other actions in the indictment. In a problematic move, the Court instructed lower courts not to conduct “highly intrusive inquiries” into motives when determining if an act is performed in an official capacity. This gives rise to Justice Sotomayor's worst fear that a president is at least presumptively immune from criminal prosecution should they order the assassination of a political rival – a position affirmed by Trump's defense team during oral arguments – as their motive would be irrelevant.

Divided Bench, Divided Panel

The Committee hearing, which saw five witnesses testify, featured varying interpretations of the Court’s decision and raised numerous unresolved questions. The discussion, naturally, went beyond the ruling itself. At the onset, Ranking Member Graham (Republican - R) framed the hearing as part of a narrative to “delegitimize the Court”. Republicans cited threats against Members of the Court and opposed it being labelled a “MAGA court” (“MAGA”, or “Make America Great Again” being Trump’s 2016 electoral slogan), while Professor Mascott condemned recent leaks of Supreme Court memos. Chairman Durbin (Democrat - D) denied suggestions that Democrats had endorsed violence against the Court, instead emphasizing the Committee's routine business in conducting hearings about important judgments. Some witnesses began their statements by expressing respect for the Court as an institution, while Senator Blumenthal (D) remarked that the Court had inflicted this wound upon itself.

Senator Whitehouse (D) criticized the Court for issuing delayed judgments compared to their decisions in Bush or Nixon (two high-stakes decisions on electoral recount and executive privilege), both of which were delivered within days to weeks. Senator Lee (R) accused the "progressive left" of rejecting the Court's decision only once it appeared unlikely to undermine Trump’s reelection bid. Senator Kennedy (R) objected to the hearing's title, claiming it misrepresented the Court's decision. The hearing also served as a platform for republicans and democrats pitching their legislative initiatives pertaining to the Court.

1. Nature of the Objection and the Counter-Objections

Three key objections to the decision emerged during the Committee hearing. First, Professor McCord submitted that Presidents enjoy absolute immunity in the exercise of core constitutional power, but she argued that the Court had "capriciously defined" these powers. She disputed the Court's view that prosecution is a “quintessentially executive function” and its expansive interpretation of the Take Care Clause. Second, Professor Naftali stressed the importance of motive in determining whether an act is official, arguing that accountability should stem from the motives that animate decisions. This creates challenges, as Senator Hirono (D) pointed out, in terms of addressing mens rea in future trials. Third, Senator Durbin (D) celebrated Justice Barrett's separate opinion, which challenges the majority view that evidence of official acts cannot be used to prosecute unofficial acts. (In her opinion, Justice Barrett asserted that a jury must consider both the "quid" and the "quo" to fully understand allegations of quid pro quo).

Supporters of the decision offered three policy rationales: first, presidential immunity prevents a president from having to "look over their shoulder" (Senator Lee (R) (a concern raised in Federalist Paper 70); second, it guards against forum shopping and the financial burden on former presidents from “ambitious district attorneys” in unfavorable jurisdictions (Senator Kennedy (R)); and third, it stops incoming administrations from retaliating against their predecessors (Professor Mukasey).

1. Textualism and Precedents 

A debate ensued in the Committee regarding the textual basis of the majority’s opinion. Professor Lacrova asserted that there is no textual support or precedent for the decision, rejecting Professor Mukasey’s claims of parallels to civil immunity in Fitzgerald.  Lacrova asserted that under Section 3 of the US Constitution, a president can only be impeached for official acts. Thus, the reserved right of "Indictment, Trial, Judgment, and Punishment" mentioned in that section allows for prosecuting a president for official acts, not just personal ones.

Conversely, Senator Whitehouse (D) criticized originalism as “fake” and a “doctrine of convenience,” arguing that while the US Constitution grants immunity, the founders provided it for legislators but not presidents. 

Responding to Senator Kennedy’s (R) questioning on the textual basis for the decision, Professor Mascot cited the longstanding principle of separation of powers. Senator Kennedy (R) then challenged Professor Lacrova to acknowledge the existence of separation of powers in the US Constitution, despite the term itself not being mentioned. Senator Lee (R) argued that this understanding of immunity is foundational to the US Republic, while Senator Cruz (R) contrasted the US with “banana republics” like Brazil and Pakistan, which he suggested imprison former leaders.

1. The Looming Navy SEAL Team 6 Scenario:  History, ‘hyperbolic hypos’, and ‘fear mongering’

In the judgment, Justice Sotomayor had warned that future presidents could be “cloaked in such immunity”, while Justice Roberts accused the dissenting judges of “fear mongering based on extreme hypotheticals.” To test the limits of the Supreme Court decision in the Committee hearing, witnesses and Committee members presented various hypotheticals and historical scenarios.

Opponents of the decision questioned whether a president could create a master list of political opponents, wiretap communications, obstruct justice, compel a federal agency to settle baseless claims for millions of dollars, or instruct the IRS, the taxation agency, (à la Nixon or Johnson) to investigate opponents. Few answers emerged regarding these hypotheticals. Senator Graham (R) classified the assassination of a political rival as not an official act, while Professor Mukasey labeled it as a “facially illegal” act, criticizing the opposing side and their witnesses for attributing a "lack of common sense" to the majority opinion through "dramatic" scenarios.

In an exchange with Senator Welsh (D), Professor Mukasey initially claimed presidents are “politically answerable” for the IRS hypothetical but later conceded that a president has no immunity. Professor Mukasey did not clarify why under an expansive reading of the Take Care Clause a president cannot probe into a political rival, especially given the Court had concluded that a sham investigation does not “divest the President from exclusive authority”.

Senators in favor of the decision questioned whether a president could be held criminally negligent for actions like the US withdrawal from Afghanistan, drone-striking Americans abroad (Anwar Al-Awlaki), bombing Hiroshima, or interning Japanese Americans during World War Two. They contrasted these with prosecutable private actions, such as sexually assaulting an intern or stealing campaign funds.

Motive was scrutinized by both sides. One witness asked if Nixon’s alleged motivation for monitoring Jews in government – because 'they are born spies' – would grant him immunity for anti-Semitic actions. Senator Graham (R) argued that President Franklin Roosevelt’s internment of Japanese Americans, despite its manifest racism, shouldn’t lead to prosecution. Meanwhile, Senator Lee (R) examined the motive from a different angle, questioning whether Clinton's order for military action during the Monica Lewinsky scandal – ostensibly to divert public opinion – makes him less immune.

Conclusion

In After Trump, Bob Bauer and Jack Goldsmith likely did not foresee the damage the Supreme Court would inflict on the presidency. While Democrats have pledged to combat this ‘judicial activism’ through various constitutional and statutory measures – such as expanding the bench, impeaching two conservative justices, and seeking to overturn the ruling via a constitutional amendment – the effectiveness of these long shots remains uncertain, especially given the unpredictable control over the US House of Representatives (the lower chamber of the legislature).

One thing is clear: this decision poses significant risks, and its implications are still unfolding. If leading legal minds disagree on its scope, that signals a dangerous and flawed ruling. Beyond Trump's political future, the core issue is whether presidents can "do what they want" with immunity. Clearly, the Court's opinion seems to support this idea to some extent, but the hearing highlights the lack of consensus on how far presidential immunity can actually stretch, leaving us wondering: what are the real limits?

Ahmed Elbasyouny is a PhD Fellow at the Center for Constitutional Democracy, Indiana University Maurer School of Law.

Suggested citation: Ahmed Elbasyouny, ‘The US Senate Judiciary on The President’s License to Kill’ IACL-AIDC Blog (31 October 2024) The US Senate Judiciary on The President’s License to Kill — IACL-IADC Blog