In Thursday’s Supreme Court hearing regarding Donald Trump’s claims of absolute presidential immunity, Justice Clarence Thomas was the first to ask a question after Michael Dreeben, arguing against Trump’s claim on behalf of special counsel Jack Smith, concluded his opening remarks.
Dreeben began his argument by stating that no president should have immunity from crimes such as “treason, sedition, murder, and here conspiring to use fraud to overturn the results of an election and perpetuate himself in power.” He emphasized that such immunity has no basis in the Constitution and that the framers designed the system to check abuses of power, especially those aimed at personal gain. He added that the executive branch is enforcing congressional statutes and seeking accountability for the alleged misuse of presidential power to subvert democracy. According to Dreeben, the existing legal safeguards provide ample protection, with the courts serving as the ultimate check, ensuring accountability without the high constitutional cost of blanket criminal immunity.
They therefore devised a system to check abuses of power, especially the use of official power for private gain. Here, the executive branch is enforcing congressional statutes and seeking accountability for petitioners alleged misuse of official power to subvert democracy. That is a compelling public interest. In response, petitioner raises concerns about potential abuses, but established legal safeguards provide layers of protections, with the Article Three courts providing the ultimate check. The existing system is a carefully balanced framework that protects the president, but not at the high constitutional cost of blanket criminal immunity. That has been the understanding of every president from the framing through Watergate and up to today. This court should preserve it. I welcome the court’s questions.
After hearing Dreeben’s opening remarks, Justice Thomas asked whether the president has immunity, or if there is no immunity even for official acts. Dreeben responded that the president, as the head of the executive branch, can raise objections to criminal laws that interfere with the exclusive powers of the presidency or prevent the president from fulfilling constitutionally assigned functions.
However, he argued that Trump is seeking broad blanket immunity that would protect him, as a former president, from any criminal liability except through impeachment and conviction, which has never happened in American history. Dreeben contended that this level of immunity is unnecessary to ensure that the president can perform all constitutionally assigned tasks
