Dem
51
GOP
49
You knew it was coming, and now Rep. Joe Morelle (D-NY) has made it happen. Backed by 49 co-sponsors, he has filed proposed text for a constitutional amendment meant to de-kingify the presidency, following the recent Supreme Court decision on presidential immunity.
Here is the complete text, as proposed by Morelle:
SECTION 1
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, except for Senators and Representatives acting pursuant to the first clause of the sixth section of the first article.
SECTION 2
The President shall have no power to grant a reprieve or pardon for offenses against the United States to himself or herself.
SECTION 3
This amendment is self-executing, and Congress shall have the power to enact legislation to facilitate the implementation of this amendment.
You can see how it's trying to solve multiple problems at once, specifically presidential (and vice-presidential and congressional) immunity, as well as self-pardons. It might be nice to include verbiage barring pardons for accomplices in committing crimes, but maybe that raises tricky legal issues that are not obvious to us. Rep. Jamie Raskin (D-MD), widely regarded as Congress' foremost authority on constitutional law, is a co-sponsor, so you can be sure he went through the text with a fine-toothed comb.
Undoubtedly this will end up as a messaging bill, since it would require significant Republican buy-in to pass Congress and be sent to the state legislatures. We pooh-pooh a Republican messaging bill below, but we think this one is a little different than that one. First, any Republican member who votes against the bill is at risk of being asked, over and over, "So, you think the president should be above the law?" Or, perhaps more pointedly, "So, you think Donald Trump should be above the law?" In deep-red districts, the answer is "yes." But in purple/swing districts? We don't see a good answer.
Further, most messaging bills come up for a vote, the vote happens, one party or the other makes whatever point they were trying to make, and that's pretty much it. With this one, however, Joe Biden could make it a point of emphasis for the balance of his term, talking about how much he respects the office of president (a theme of his speech on Wednesday) and how ready he is to sign. If he really wants to keep the issue in the news, he could issue an outlandish executive order (say, instructing federal marshals to arrest any members of Congress who are deemed to have supported the insurrection on 1/6). Then, he can withdraw the XO the next day, and say: "This was just an object lesson. Is everyone SURE they want a president who is above the law?"
Recall that after Lyndon B. Johnson bowed out in 1968, he continued to use the powers of his office to try to help Democratic candidate Hubert H. Humphrey. And it almost worked, but for Richard Nixon and his team interfering with negotiations over the conflict in Vietnam. Undoubtedly, Biden will spend much time trying to bring some version of peace to Gaza, but he's got time and opportunity to pursue other options, as well. (Z)