The Supreme Court heard oral arguments on Thursday regarding former President Donald Trump’s claim of presidential immunity in Special Counsel Jack Smith’s January 6 case in Washington, D.C. This case reached the Supreme Court after the DC Circuit Court of Appeals ruled that Trump was not immune from prosecution for alleged crimes committed during his tenure as President.
Trump’s legal team argued that he should be immune from federal prosecution for actions taken while serving as President. John Sauer, a Missouri-based attorney for Trump, opened by arguing that Jack Smith’s indictment relies on vague statutes to criminalize what he termed “core authority” of the presidency. Sauer pointed out that immunity for past presidents protects individuals like George W. Bush and Barack Obama from being prosecuted for crimes they might have committed while in office.
During the oral arguments, conservative Justice Samuel Alito challenged the prosecution’s position on presidential immunity with a pointed question. Alito asked DOJ prosecutor Michael Dreeben if a president could claim immunity if an attorney general advised that certain actions were lawful. Dreeben responded, “Yes, I think that it is.”
Alito then followed up with a question suggesting that such a defense could incentivize presidents to choose attorney generals who would align with their legal views:
“But won’t that give presidents incentive to be sure to pick an Attorney General who will reliably tell the president that it is lawful to do whatever the president wants to do if there’s any possible argument in favor of it?”
Dreeben replied that the constitutional structure protects against this risk, noting that the President nominates the attorney general and the Senate provides advice and consent. However, this response didn’t fully address Alito’s concerns about the potential for executive overreach if the advice of an attorney general is seen as absolute.
Justice Alito also referenced historical events, asking if President Franklin D. Roosevelt’s decision to intern Japanese-Americans during World War II could have been charged as a crime under current interpretations of presidential immunity. Dreeben acknowledged that “today, yes,” it could be charged, indicating a shift in legal perspectives over time.
