Ex-DOJ prosecutor applauds proposed constitutional amendment to 'override' SCOTUS immunity ruling

26 July 2024

On Thursday, July 25, Rep. Joe Morelle (D-New York) proposed a constitutional amendment designed to override the U.S. Supreme Court's controversial 6-3 immunity ruling in Trump v. the United States. And Rep. Jamie Raskin (D-Maryland) — a law professor known for his constitutional expertise — has signed on as one of the 49 co-sponsors.

In an article published by the conservative website The Bulwark the following day, law professor and former federal prosecutor Kimberly Wehle applauds Morelle's proposal.

"The amendment should be ratified," Wehle argues. "Short of adding justices to the Supreme Court willing to reverse the 6–3 immunity decision, it's the only way to save the country's foundational charter from autocratic ruin."

The law professor continues, "Although a constitutional amendment sounds like a radical impossibility, it's of course not without precedent. With over 10,000 amendments proposed since 1789, the document has been officially amended 27 times — most recently in 1992 to freeze changes in congressional salaries until the next election. Killing the Court's outrageous immunity decision should be the 28th."

Wehle has made no secret of her vehement disdain for the High Court's Trump v. the United States ruling, which said that U.S. presidents enjoy total immunity from criminal prosecution for "official" acts but not for "unofficial" acts.

However, she acknowledges that getting Morelle's proposed amendment added to the U.S. Constitution would be an uphill battle all the way.

"Ratification of a constitutional amendment repealing Trump v. U.S. would require supermajorities in both houses of Congress and among state legislatures," Wehle notes. "That kind of herculean support means that the amendment has no chance of getting through the Republican Party's entrenchment in authoritarianism."

Morelle's proposed amendment reads, "No officer of the United States, including the President and the Vice President, or a Senator or Representative in Congress, shall be immune from criminal prosecution for any violation of otherwise valid Federal law, nor for any violation of State law unless the alleged criminal act was authorized by valid Federal law, on the sole ground that their alleged criminal act was within the conclusive and preclusive constitutional authority of their office or related to their official duties."

Morelle's proposed amendment also states, "The President shall have no power to grant a reprieve or pardon for offenses against the United States to himself or herself…. This amendment is self-executing, and Congress shall have the power to enact legislation to facilitate the implementation of this amendment."

Kimberly Wehle's full analysis for The Bulwark is available at this link.

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