The discussion between Justice Neil Gorsuch and Michael Dreeben in the Supreme Court focused on whether certain presidential actions could be considered immune from prosecution, specifically regarding former President Donald Trump’s claim to presidential immunity. Justice Gorsuch questioned the extent to which presidential conduct could be criminalized and whether there are specific “core” functions of the executive branch that Congress cannot touch.
Initially, Gorsuch wanted clarity on Dreeben’s stance on the term “immunity” and asked if Congress could criminalize any executive functions. Dreeben agreed that there were some functions that Congress couldn’t criminalize but used the term “as applied Article 2 challenge” instead of “immunity.”
Gorsuch pushed for a simpler term, suggesting “immunity” as shorthand to describe these core presidential functions. Dreeben acknowledged the concept but resisted the term “immunity,” emphasizing that there is a considerable gap between “any official act” and the “small core of exclusive official acts” that could be protected.
Gorsuch then provided an example scenario to further clarify the boundaries of presidential conduct. He suggested a hypothetical situation where a president leads a peaceful protest sit-in in front of Congress, potentially impeding an official proceeding. He asked whether such an action would fall under the protected “core” functions or be subject to prosecution.
Dreeben responded by listing core activities that are explicitly constitutionally allocated to the president, such as the pardon power, recognizing foreign nations, vetoing legislation, and making appointments. These powers form a small set of exclusive functions. Based on this framework, Dreeben indicated that conduct outside of these core functions could potentially lead to prosecution.
Gorsuch: Let me just back up, though, just a second to what was a quick exchange with Justice [Bret Kavanaugh] that I just want to make sure I understand. Did you agree that there are some core functions of the executive that, president conduct, that Congress cannot criminalize?
Dreeben: Yes.
Gorsuch: So, is that a form– I mean, we can call it immunity or you can call it “they can’t do it,” but what’s the difference?
Dreeben: We call it an “as applied Article 2 challenge” that–
Gorsuch: Okay. Okay. Can we call it immunity just for shorthand’s sake? So I think we are kind of narrowing the ground of dispute here. It seems to me there is some, some area you, you concede that, in official acts, that Congress cannot criminalize. And now we’re just talking about the scope.
Dreeben: Well, I don’t think I said “just,” but I think it’s a very significant gap between any official act and the small core of exclusive official acts.
Gorsuch: I got that, but I want to explore that, okay? So, for example, let’s say a president leads a mostly peaceful protest sit-in in front of Congress because he objects to a piece of legislation that’s going through. And it, in fact, delays the proceedings in Congress. Now under 1512 C 2. That might be corruptly impeding an official proceeding. Is that core and therefore immunized or whatever word euphemism you want to use for that. Or is that not core and therefore prosecutable?
Dreeben: Well–
Gorsuch: Without a clear statement that applies to the president.
Dreeben: It’s not, it’s not core. The core kinds of activities that the court has acknowledged are the things that I would run through the Youngstown analysis, and it’s a pretty small set. But things like the pardon power, the power to recognize foreign nations, the power to veto legislation, the power to make appointments, these are things that the Constitution specifically allocates to the president. Once you get out–
Gorsuch: So a president then could be prosecuted for the conduct I described after he leaves office?
Dreeben: Probably not. But I want to explain the framework of why I don’t think that that would be prosecution that would be valid.
