On the docket: Are Trump-prompted court reforms on the table?
Donald Trump has landed a handful of legal victories in recent weeks, but Joe Biden this week set his sights on disrupting the ex-president’s efforts to evade prosecution – calling for reform that would make him legally accountable.
Biden on Monday slammed the US supreme court decision on 1 July that granted Trump vast immunity for actions taken in his official capacity as president. This ruling, which effectively means that a president is no longer constrained by law for actions considered official, constitutes a “a fundamentally flawed [and] dangerous principle”, Biden said.
Biden said he was proposing a constitutional amendment that would make presidents subject to criminal code. The backdrop to Biden’s call for action is the immunity decision dealing significant blows to two federal cases against Trump, including special counsel Jack Smith’s Washington DC election subversion case.
The supreme court found that Trump’s alleged attempts to enlist the justice department in his election subversion scheme would fall under his presidential powers and protections, making them immune from prosecution.
Judge Aileen Cannon, who is overseeing Smith’s Florida classified documents prosecution against Trump, leaned on conservative justice Clarence Thomas’s concurring opinion in which he questioned the legality of the special counsel role.
Cannon ran with this idea, ruling that “the court sees no way forward aside from dismissal”.
Trump has also invoked the immunity decision in an effort to throw out his Manhattan felony conviction for falsifying business records in a hush-money scheme. Trump’s lawyers said that prosecutors’ use of 2018 Twitter posts as evidence that he knew about the scheme were official communications.
Biden slammed Trump’s pursuit of immunity during his Monday address in Austin, Texas, which commemorated the 60th anniversary of the Civil Rights Act’s passage. “No other former president has asked for this kind of immunity and none should have been given it,” he said. “The president must be accountable to the law … We are a nation of laws, not kings and dictators.”
This all sounds reasonable – the existence of the United States stemmed from dislike of kings and dictators, after all – but securing a constitutional amendment is the legislative equivalent of moving mountains. A proposed amendment must receive support from two-thirds of Congress (both House and Senate) and then be green-lit by three-quarters of state legislatures.
There haven’t been any new constitutional amendments in more than three decades, according to the AP. And Mike Johnson, the Republican House speaker, described Biden’s idea as a “dangerous gambit” winding up “dead on arrival in the House”.
Biden’s call for court reform also comes after a slew of scandals involving US supreme court justices. Over the past few years, the conservative super-majority has delivered ruling after ruling along ideological lines, including the reversal of Roe v Wade, taking away the constitutional right to abortion.
Two-members of the super-majority, Thomas and Samuel Alito, have faced criticism for failing to recuse themselves from cases in which they allegedly had conflicts of interest; Alexandria Ocasio-Cortez, the New York Democratic representative, has introduced articles of impeachment against them.
“The supreme court’s current code of conduct is weak and even more frighteningly voluntary,” Biden told the audience, demanding that there be a binding code of conduct for justices. The US, Biden noted, is the only western democracy that grants lifetime appointments to its highest judicial panel. Biden’s pitch for term limits calls for capping justices’ terms at 18 years; their stints would be staggered, commencing when the next justice would leave their post. Harris has backed Biden’s proposal.
While calls for supreme court reform have enjoyed wide public support – a July 2022 Associated Press poll found that 67% of Americans, including 57% of Republicans, support set terms – Biden’s pitch for a constitutional amendment is unlikely to go anywhere, let alone before the election.
Some of the potential workarounds that have come up include passing a law that would impose term limits. But this law could be challenged in court, and would almost certainly land at the US supreme court, which would then decide on its constitutionality. And with a super-conservative court, the likelihood of the justices agreeing to rein in their own power seems all but nil.
Sidebar: He fought the law and maybe the law will win?
Despite Trump’s wins, legal authorities continue to push back on his kitchen-sink approach to skating punishment. Manhattan prosecutors argued on 24 July that the supreme court’s immunity decision had no impact on this case.
“All of the evidence that he complains of either concerned wholly unofficial conduct, or, at most, official conduct for which any presumption of immunity has been rebutted,” prosecutors wrote in their argument to judge Juan Merchan. They said that Trump’s tweets used as evidence were posted in an “unofficial capacity”. Merchan, who postponed Trump’s sentencing from 11 July to 18 September following the immunity decision, is expected to rule on this issue by 6 September.
And then there’s Trump’s civil fraud case. Arthur Engoron, the New York judge who found Trump liable for fraud and hit him with a more than $454m penalty, refused to recuse himself from the case on 25 July. Trump’s legal team asked Engoron to recuse himself after another attorney claimed that he and the jurist had talked about state law related to the core of this case, before the verdict came down.
Engoron wrote that the lawyer, Adam Bailey, “accosted and started haranguing me” about the case law: “Prior to that time, I considered Bailey a professional acquaintance and a distant friend. His sudden appearance and vehement speech took me aback, and I simply told him that he was wrong.”
Harris v Trump
As Trump’s cases continue to wind through courts, Harris’s supporters are doubling down on the prosecutor-versus-felon motif of the former California attorney general’s campaign.
The Lincoln Project posted a 45-second video on X, Kamalaw & Order, that mirrors the intro from the hit series Law & Order. There are the requisite photos of a stately Harris, with her arms crossed, and Donald Trump in front of jail bars, with quick shots of skylines and pictures of evidence, interspersed with audio clips of her full-bodied laugh.
Cronies and Casualties
Remember Mark Meadows, the former White House chief of staff? Along with ex-boss Trump and various other hangers-on, Meadows is facing an election subversion case in Georgia. Now, Meadows wants to get this state case moved to federal court, citing the Trump-friendly supreme court’s immunity ruling.
“It is hard to imagine a case in which the need for a federal forum is more pressing than one that requires resolving novel questions about the duties and powers of one of the most important federal offices in the nation,” Meadows’ lawyers wrote in their petition.
This isn’t Meadows first pitch to move this case to federal court. A three-judge panel of the 11th US circuit court of appeals rejected this bid in December. The full 11th circuit subsequently did not agree to hear Meadows’ argument, the Hill noted.
This case is on hold for the time being regardless of what happens with Meadows’ petition. A state appeals court is set to hear arguments in December over Trump’s push to remove prosecutor Fani Willis from this case.
