Watch: Ted Cruz bemoans Trump indictments in Senate clash over presidential immunity
Sen. Ted Cruz (R-TX) drew a sharp rebuke on Tuesday when he compared Donald Trump's alleged unlawful retention of official documents and attempt to overthrow the election as similar to former President Harry Truman dropping nuclear weapons on Japan during World War II.
While discussing this year's Supreme Court ruling on presidential immunity, Cruz and other Republicans on the committee raised the potential dangers of allowing a former president to be criminally prosecuted for actions he took while in office.
During the hearing, Cruz asked one of the GOP's legal witnesses how many times a president had been indicted before Donald Trump's indictments, to which he replied that no presidents had previously been indicted.
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Cruz then listed a number of examples of presidents committing potentially indictable actions, such as putting a group of people in internment camps, as was done in World War II. He said that an individual citizen couldn't do it, and when former President Franklin D. Roosevelt built such camps, he wasn't indicted.
Democratic Sen. Peter Welch (D-VT), however, countered by asking about a scenario in which a president ordered the IRS to audit a perceived foe. The GOP's own witness, former Judge Michael B. Mukasey, initially dodged the question by saying a president was "politically responsible," meaning he could be voted out of office. But Welch said that wasn't his question.
Mukasey ultimately confessed that such behavior would be unlawful.
But former acting assistant Attorney General for National Security Mary McCord explained that the Supreme Court's ruling in such a scenario would likely render the president's conversation ordering the IRS to investigate an opponent privileged and thus unusable for the purposes of criminal prosecution.
"Senator, I think this is what's left open by the decision," McCord testified. "Because the Supreme Court capaciously defined these core constitutional powers as absolutely immune, it opens the door to the very types of activities that my colleague, Judge Mukasey, agrees should not have immunity."
She said that there could be other readings or examples, but the Supreme Court left it out, refusing to define the specifics.
"And we're left wondering exactly how far this opinion goes," said McCord.
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