An Independence Day Call to Action

Contemplating what is needed for an amendment to overturn the Supreme Court's decision giving immunity to presidents for criminal actions

Today marks the 248th anniversary of the Declaration of Independence. I wish everyone a very happy and healthy 4th of July and I hope all my subscribers are getting to enjoy some much needed fun or time off today.

While I hope to enjoy today, I can’t help but note that this Independence Day is marred by the potential that our great democracy is at risk due to a terrible court decision.

This week, the United States Supreme Court ruled (at least partly) in favor of Donald Trump, holding that Presidents have absolute immunity from criminal prosecution for official acts undertaken as President.¹

Many commentators have criticized this decision as outrageous. I completely agree.²

Presidents are not kings. There is no textual basis in the Constitution for making Presidents above the law (as even Chief Justice John Roberts admitted in this fakakta opinion). There is no legal precedent for suggesting such a thing.³ And there is ample evidence to demonstrate that the framers of our Constitution never intended such a thing and rejected the premise of President above the law.⁴

Many are focused on the immediate aftermath of this decision as it pertains to Donald Trump and his trials. But we honestly need to think beyond him and even beyond Joe Biden, who has condemned the ruling. The idea that our Presidents should be unconstrained by the law is a frightening future prospect. No citizen should ever be above the law, let alone a citizen with all the powers that a President possesses.

This decision creates a mechanism for any President to use their official powers to commit crimes and completely escape any liability for them. This is a dangerous precedent and does not bode well for the future of our republic. As Justice Sonia Sotomayor concluded in her powerful and well-written dissent, “With fear for our democracy, I dissent.”

This Independence Day, with our democratic system under threat, we need to declare our collective resolve to overturn this decision and restore our great American principle that no man is above the law.

In order to overturn this decision, we will need a constitutional amendment.

This is admittedly quite a difficult undertaking. However, I don’t think we should be deterred. Just think back to 248 years ago today. What the brave men who signed the Declaration of Independence attempted to do (along with those rebellious Americans who dared to support them) was more than just a difficult undertaking.⁵ It was unprecedented and considered impossible.

To amend the United States Constitution, we will need:

1. Two Thirds of the United States Senate voting in favor.

2. Two Thirds of the United States House of Representatives voting in favor.

3. Ratification of the amendment by the State Legislatures of Three Fourths of the States.⁶

I emphasize the word “State Legislature” for a very important reason. The term “legislature” has a different meaning under the Constitution depending upon its use.⁷ 26 states have ballot initiative systems, which have been used to restore democratic principles.⁸ For example, Americans have used this process to take away power from their state legislature to create independent redistricting commissions.⁹

In many states, this has been the only way for Americans to end extreme partisan gerrymandering and regain control of their political system.¹⁰ The Supreme Court has held that this is constitutionally permissible.¹¹

However, for the purpose of amending the Constitution, the Supreme Court has held that the actual State Legislature must ratify the amendment and that citizens acting through the popular vote cannot do so. not popular democracy.¹² This means that in states with heavily Republican legislatures but containing ballot initiative systems, we will not be able to over-ride them through the popular vote.

Thus, this effort will need to be truly bi-partisan and requires a broad coalition. It will mean that those on the left who want to change the Constitution will have to work with those on the right, including Republicans, Libertarians, Trump voters, and pro-life voters.

I am already seeing leftwing pundits dragging in other cases that they disagree with and relating the issue of absolute immunity for criminal actions of the President to other political issues. But if we are to succeed at amending the Constitution, that will mean working with gun owners, opponents of affirmative action, business owners, and those who think the administrative state needs to be reigned in.

If the calls to overturn the Supreme Court’s immunity decision become a left wing cause or a weapon of the Democratic Party to win elections, it will undoubtedly fail.

In writing the amendment, there needs to be a plan to assuage fears of those who fear a future of political prosecutions and build a broad coalition. Some of Trump’s defenders have genuine concerns and criticisms over the current prosecutions of Donald Trump. They need to be recognized in crafting any Constitutional amendment.

Here are some ideas for provisions that could be included within this amendment:

1. Automatic Supreme Court Appeal. Any prosecution of a former President should allow a convicted President to have a right to a final appeal to the Supreme Court. Regardless of who brings the prosecution, we need to ensure that the defendant has the ability to have their conviction reviewed by the highest court in the land.

2. Malicious Prosecution Action. An amendment should enable an acquitted President to bring a malicious prosecution action if the prosecution is brought for political purposes. Using a criminal prosecution of a former President to boost oneself politically, create political imagery to harm an opponent, or simply punish a President of an opposing party needs to be discouraged.

3. Statute of Limitation Clarity. An amendment should clarify that the statute of limitations for any crime committed by the President only begins to run after the President leaves office regardless of when the crime occurs. This is to avoid future mess if a President cannot be prosecuted while in office but the ordinary statute of limitations on the crime expires before the President leaves office.

4. Applicable Jurisdiction. The amendment should specify which court the trial should be held in. The caveat should be that if that court or a successor court is not in existence, the trial can take place in the jurisdiction where the criminal action would otherwise be brought.

5. Juror Requirements. The amendment should require that the jury must include at least two members who are not of the same party as the rest of the jurors. If trials will be held in the District of Columbia District Court, the jury pool should include the entire Beltway Region to ensure a more fairly partisan jury.

6. Creation of Constitutionally Independent Prosecutor’s Office. If the federal government is bringing the charges, the amendment should make the prosecutor truly independent where they do not answer to the President’s Attorney General and cannot be fired by the White House.

7. Prospective Operation. The amendment should be expressly prospective. This means that this will protect Donald Trump, at least for his first (and hopefully only) term. I realize that many will dislike this. But this may be the only way to get Trump supporters on board with the idea.

Why do I suggest some of these safeguards beyond the basics of expressing that Presidents do not have absolute immunity for criminal acts?

There are legitimate concerns about political prosecutions. Look no further than Ukraine. After the 2010 election where Vladimir Putin-backed Victor Yanukovich narrowly defeated Yulia Tymoshenko for President, Yanukovich had Tymoshenko prosecuted for bad decisions she made on gas deals while serving as Prime Minister of Ukraine.¹³

There have been legitimate concerns over local prosecutors bringing political prosecutions simply to gain attention and build up their fundraising base. These have not been helped by some of the activities of Fulton County District Attorney Fani Willis in particular, who’s managed to make a prosecution for what is clearly a crime look like a politically motivated prosecution.¹⁴

An amendment should create protections against over-politicization of the process and a desire for politics. As President Biden said this week in a nationally televised speech condemning the decision, Presidents need to be reminded that they have to act within the law. He explained that simply knowing they are not above the law is an important restraint on Presidents.

Finally, I conclude with an important reminder. In 2020, 74 million Americans, for whatever reasons, voted for Donald Trump.¹⁵ That was their fundamental constitutional right to do even if I don’t like it. We cannot pretend otherwise.

Reaching them is critical if we are to fix the mess that the Supreme Court has created. It is possible. In the 2024 Primaries, exit polls of Republican Primaries showed that a majority of Republicans did not consider themselves to be part of the “MAGA Movement” even as they still voted to nominate Trump.

If that means changing our Constitution so that it does not address Trump’s actions between 2017 and 2021, that may have to be the sacrifice. The sacrifice will be well worth it though if we are able to save our country from future elected dictators.

But what are your thoughts? Please let me know in the comments section! And once more, I wish all my readers a very happy 4th of July!

1. https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

2. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.