Supreme Court could narrow Jack Smith's J6 case against Trump after justices weigh harms of discarding presidential immunity

During Thursday's oral arguments on the question of President Donald Trump's immunity claim in the J6 case brought by Special Counsel Jack Smith, justices leaned into questions of what presidents could be held criminally liable for if the concept of presidential immunity is overturned. 

Justice Brett Kavanaugh intimated that if immunity were overruled in the Biden administration's case against Trump, presidents could be prosecuted for actions taken during their presidency. 

He asked US attorney Michael Dreeben whether President Gerald Ford's pardon of Richard Nixon could be construed as "obstruction of justice" if the court ruled against Trump in the case. 

"So this would fall into that small core area ... of responsibilities that Congress cannot regulate," Dreeben answered. He previously raised the point that only actions under Article II of the Constitution would be considered actions that are outside of congressional regulation and immune from prosecution.  

"How about President Obama's drone strikes?" Kavanaugh pressed, referring to drone strikes that the former president carried out in office which killed US citizens abroad.

Dreeben said that under war powers of the president, he would have a carve out from laws against murder in the US.

The claims on Article II actions came in Justice Thomas’ questioning of the government attorney who similarly interrogated the question of immunity for official actions taken by the president of the US. 

Dreeben said that the official actions of the president do not need any more immunity than what actions are listed in Article II of the Constitution.  

Another decision made by presidents in the past brought up by Justice Alito included the Japanese internment camps implemented by World War II-era President Franklin Delano Roosevelt. 

Dreeben said that prosecution at the time of those actions would not have been warranted.  

"That is the constitutional doctrine that currently governs, the separation of powers. What petitioner is asking for is a broad blanket immunity that would protect the president, a former president, from any criminal exposure, absent impeachment and conviction which has never happened in our history," Dreeben reasoned early in the questioning. 

In his opening statements, Trump attorney D. John Sauer also brought up that individuals could potentially prosecute President Joe Biden after he leaves office due to his complete failure and refusal to enforce immigration laws.

In another line of questioning Justice John Roberts asked Dreeben about his support of the DC Circuit Court's ruling in the case and if he agreed with a statement made in the ruling.  

Roberts read the line from the lower court's decision, which said, “A former president can be prosecuted for official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws." 

The Chief Justice restated that the line of reasoning essentially said, "A former president can be prosecuted because he's being prosecuted." 

Dreeben admitted that the reasoning seemed to be logically circular and unfalsifiable when Roberts inquired about the decision of the lower court. Dreeben then spoke about how the various layers of the justice system could prevent most from wrongly being indicted.  

Roberts replied, saying that if the lower court was relying on the "good faith" of the justice system it may "not be enough" in some cases.  

The Chief Justice added, "So if it's tautological, and those are the only protections that the Court of Appeals below gave, and that is no longer your position, you're not defending that position.” He then asked Dreeben, "Why shouldn't we either send it back to the Court of Appeals or issue an opinion making clear that that's not the law?" 

Dreeben replied, "I am defending the Court of Appeals judgment, and I do think that there are layered safeguards that the court can take into account that will ameliorate concerns about unduly chilling presidential conduct that concerns us." He then argued on behalf of the integrity of the justice system.