Return to Transcripts main page
CNN Live Event/Special
Supreme Court Hears Arguments Over Presidential Immunity. Aired 11-11:30a ET
Aired April 25, 2024 - 11:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[11:00:01]
MICHAEL DREEBEN, ADVOCATE FOR SPECIAL COUNSEL JACK SMITH: Petitioner, however, claims that a former president has permanent criminal immunity for his official acts, unless he was first impeached and convicted.
His novel theory would immunize former presidents for criminal liability for bribery, treason, sedition, murder, and, here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power.
Such presidential immunity has no foundation in the Constitution. The framers knew too well the dangers of a king who could do no wrong. 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 petitioner's 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 3 courts providing the ultimate check. The existing system is a carefully balanced framework.
It 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.
CLARENCE THOMAS, U.S. SUPREME COURT ASSOCIATE JUSTICE: Mr. Dreeben, does the president have immunity -- are -- are you saying that there's no immunity, presidential immunity, even for official acts?
DREEBEN: Yes, Justice Thomas, but I think that it's important to put in perspective the position that we are offering the court today.
The president, as the head of the Article 2 branch, can assert, as applied, Article 2 objections to criminal laws that interfere with an exclusive power possessed by the president or that prevent the president from accomplishing his constitutionally assigned functions. 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.
And we submit that is not necessary in order to assure that the president can perform all of the important tasks that the Constitution reposes in him.
THOMAS: Over -- in not-so-distant past, the presidents -- or certain presidents have engaged in various activity, coups or operations like Operation Mongoose when I was a teenager. And yet there were no prosecutions.
Why? If what you're saying is right, it would seem that that would have been ripe for criminal prosecution of someone.
DREEBEN: So, Justice Thomas, I think this is a central question. The reason why there have not been prior criminal prosecutions is that there were not crimes.
And I want to explain why there are layers of safeguards that assure that former presidents do not have to lightly assume criminal liability for any of their official acts.
At the outset, there is a statutory construction principle that is applicable here. It arises when there is a serious constitutional question about applying a criminal statute to the president's acts. It is not -- and I'm sure that we will discuss this -- that no statute can apply to the president in his official capacity, absent a designation of the president in it.
But there is a principle that, if there is a serious constitutional question, courts will strive to construe the statute so that it does not apply to the president.
In addition to that, the president, I think has been mentioned earlier, has access to advice from the attorney general. And it would be a due process problem to prosecute a president who received advice from the attorney general that his actions were lawful, absent the kind of collusion or conspiracy that itself represented a criminal violation, which I don't really see as being a realistic option.
And then, if I could say one more thing, because you raised the question about potential overseas taking of life. And the Office of Legal Counsel has addressed this quite specifically. There is a background principle of criminal law called the public authority exception to liability.
[11:05:13]
And it is read into federal law, unless Congress takes specific action to oust it, which it never has done, as far as I am aware. And in a case in which the president sought to engage in overseas activity that would result in the taking of life, OLC did not say the federal murder statute doesn't apply. That would be the thrust of my friend's argument on clear statement.
Instead, OLC went through an extensive analysis on why the public authority defense would prevent it from being considered a violation of law to go after a terrorist, for example.
(CROSSTALK)
DREEBEN: I'm sorry.
JOHN ROBERTS, CHIEF JUSTICE OF THE U.S. SUPREME COURT: The Court of Appeals below whose decision we are reviewing said -- quote -- "A former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws."
Do you agree with that statement?
DREEBEN: Well, I think it sounds tautologically true, but I want to underscore that the obligation of a president is to take care that the laws are faithfully executed.
ROBERTS: Well, the reason -- I think it sounds tautologically true as well, and that, I think, is the clearest statement of the court's holding, which is why it concerns me.
It -- as I read it, it says simply a former president can be prosecuted because he's being prosecuted.
DREEBEN: Well, I would not suggest that that's either the proper approach in this case or certainly not the government's approach.
A prosecution does, of course, invoke federal criminal law. The allegations have to be presented to a grand jury, which votes upon the indictment.
ROBERTS: Well, that's what I -- I mean, shortly after that statement in the court, that court's opinion -- that's what they said, but there's no reason to worry because the prosecutor will act in good faith, and there's no reason to worry because a grand jury will have returned the indictment.
And you know how easy it is, in many cases, for a prosecutor to get a grand jury to bring an indictment. And reliance on the faith -- good faith of the prosecutor may not be enough in the -- some cases. I'm not suggesting here.
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, 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: Well, 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. We are not endorsing a regime that we think would
expose former presidents to criminal prosecution in bad faith, for political animus, without adequate evidence. A politically driven prosecution would violate the Constitution under Wayte v. United States.
It's not something within the arsenal of prosecutors to do. Prosecutors take an oath. The attorney general takes an oath.
ROBERTS: Well...
DREEBEN: So, I don't want to overstate the -- Your Honor's concern with potentially relying solely on good faith.
But that's an ingredient, and then the courts stand ready to adjudicate motions based on selective prosecution, political animus. This court relied on those very protections in the Vance case just two years ago.
(CROSSTALK)
ROBERTS: What concerns me is, as you know, the Court of Appeals did not get into a focused consideration of what acts we're talking about or what documents we're talking about because of its adoption of what you termed, and I agree quite correctly, as a tautological statement.
Because the fact of prosecution was enough, enough to take away any official immunity, the fact of prosecution, they had no need to look at what courts normally look at when you're talking about a privilege or immunity question.
DREEBEN: Well, I think I would take issue, Mr. Chief Justice, with the idea of taking away immunity.
There is no immunity that is in the Constitution, unless this court creates it today. There certainly is no textual immunity. We do not submit that that's the end of the story. The United States v. Nixon wasn't a textually based case. Neither was Nixon v. Fitzgerald. We endorse both of those holdings.
But what is important is that no public official has ever had the kind of absolute criminal immunity that my friend speaks of. Even with respect to the Speech or Debate Clause, it's very narrow. It's focused on legislative acts. It's not focused on everything that a congressman does.
[11:10:10]
And it responds to a very specific historical circumstance that basically involved the two other branches potentially harassing legislators and preventing them from doing their jobs. That's why it ended up in the Constitution.
Nothing like that ended up in the Constitution for the presidents. And that's because one of the chief concerns of the framers was the risk of presidential misconduct. They labored over this. They adopted an impeachment structure that separated removal from office as a political remedy from criminal prosecution.
This departed from the British model. The British model was, you get impeached and criminally prosecuted and convicted in the same proceeding. The framers did not want that. They wanted a political remedy in case a president was engaging in conduct that endangered the nation. He could be removed. He can't be prosecuted while he's a sitting president. That's been the longstanding Justice Department position.
SAMUEL ALITO, U.S. SUPREME COURT ASSOCIATE JUSTICE: Mr. Dreeben, you dispute the proposition that a former president has some form of immunity.
DREEBEN: Mm-hmm.
ALITO: But as I understand your argument, you do recognize that a former president has a form of special protection, namely, that statutes that are applicable to everybody must be interpreted differently under some circumstances when they are applied to a former president. Isn't that true?
DREEBEN: It is true because, Justice Alito, of the general principle that courts construe statutes to avoid serious constitutional questions.
And that has been the longstanding practice of the Office of Legal Counsel in the Department of Justice.
ALITO: All right, so this is more, I think, than just a quarrel about terminology, whether what the former president gets is some form of immunity or some form of special protection, because it involves this difference, which I'm sure you're very well aware of.
If it's just a form of special protection, in other words, statutes will be interpreted differently as applied to a former president, then that is something that has to be litigated at trial. The president -- the former president can make a motion to dismiss and may cite OLC opinions.
And the district court may say, well, that's fine. I'm not bound by OLC and I interpret it differently, so let's go to trial. And then there has to be a trial. And that may involve great expense, and it may take up a lot of time. And during the trial, the former president may be unable to engage in other activities that the former president would want to engage in.
And then the outcome is dependent on the jury, the instructions to the jury, and how the jury returns a verdict. And then it has to be taken up on appeal. So the protection is greatly diluted if you take the form -- if it takes the form that you have proposed. Now, why is that better?
DREEBEN: It's better because it's more balanced.
The blanket immunity that petitioner is arguing for just means that criminal prosecution is off the table unless, he says, that impeachment and conviction have occurred. Those are political remedies that are extremely difficult to achieve.
In a case where the conduct, misconduct occurs close to the end of a president's term, Congress is unlikely to crank up the machinery to do it. And if the impeachment trial has to occur after the president has left office, there's an open question about whether that can happen at all.
So...
ALITO: You're arguing against the most far-reaching aspects of Mr. Sauer's argument, right?
DREEBEN: Correct. That is correct.
And let me turn then to why...
BRETT KAVANAUGH, U.S. SUPREME COURT ASSOCIATE JUSTICE: Well, what about -- to unpack it a little more, do you agree that there are some aspects of Article 2 presidential power that are exclusive and that Congress cannot regulate and therefore cannot criminalize?
DREEBEN: Absolutely.
KAVANAUGH: OK.
For other official acts that the president may take that are not within that exclusive power, assume, for the sake of argument, this question that there's not blanket immunity for those official acts, but that to preserve the separation of powers, to provide fair notice, to make sure Congress has thought about this, that Congress has to speak clearly to criminalize official acts of the president by a specific reference.
That seems to be what the OLC opinions suggest -- I know you have a little bit of a disagreement with that -- and what this court's cases also suggest.
DREEBEN: So, Justice Kavanaugh, I'd like to take all of those in turn, because I don't think this court's cases speak that broadly.
[11:15:04]
I definitely don't think that the Office of Legal Counsel opinions stand for this broad proposition that, unless the president is specifically named, he's not in the statute. And I don't think that that's necessary in order to afford adequate protection for the president's valid Article 2 function.
KAVANAUGH: When you said unless -- I'm sorry to interrupt, but I want to just get this out, and you can incorporate it in the answer.
You said unless there's a serious constitutional question.
DREEBEN: Correct.
KAVANAUGH: Well, it's -- isn't -- it's a serious constitutional question whether a statute can be applied to the president's official acts.
So wouldn't you always interpret the statute not to apply to the president, even under your formulation, unless Congress had spoken with some clarity?
DREEBEN: I don't think -- I don't think, across the board, that a serious constitutional question exists on applying any criminal statute to the president.
KAVANAUGH: The problem is the vague stat -- obstruction and 371 conspiracy to defraud the United States can be used against a lot of presidential activities historically with a creative prosecutor who wants to go after a president.
DREEBEN: Well, let me try to backtrack a little bit.
KAVANAUGH: That's the -- that's what we're talking about historically, is the risk that -- and, going forward, the risk.
So, you can take all of that.
DREEBEN: I think that the question about the risk is very serious. And, obviously, it is a question that this court has to evaluate.
For the executive branch, our view is that there is a balanced protection that better serves the interests of the Constitution, that incorporates both accountability and protection for the president.
And I want to go through the protections that do exist. But perhaps it's worth returning at the outset to the statutory construction question that you raised. The Office of Legal Counsel has said the offense of bribery, of course, applies to the president. It does not name the president.
Justice Gorsuch, Section 201 does not specifically name the president.
KAVANAUGH: Well, I would assume that's personal, so that...
DREEBEN: Well, I think that it's...
KAVANAUGH: That's what Brewster said.
DREEBEN: It's -- it...
NEIL GORSUCH, U.S. SUPREME COURT ASSOCIATE JUSTICE: Bribery -- Bribery Statute 607 says the president. And I have got it in front of me. And so there is that.
DREEBEN: Well, Section...
GORSUCH: And let me just back up, though...
DREEBEN: OK.
GORSUCH: ... just a second to what was a quick exchange with Justice Kavanaugh that I just want to make sure I understand. DREEBEN: Yes.
GORSUCH: Did you agree that there are some core functions of the executive that -- president conduct, that Congress cannot criminalize?
DREEBEN: Yes. We...
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, and, as applied, Article 2 challenge, that...
(CROSSTALK)
GORSUCH: OK. OK. Can we call it immunity just for shorthand's sake?
So, we -- so, I think we are kind of narrowing the ground of dispute here. It seems to me there is some -- some area you concede that -- and official acts that Congress cannot criminalize. And now we're just talking about the scope.
DREEBEN: Well, I don't think it's a 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, OK? 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.
DREEBEN: Mm-hmm.
GORSUCH: And it, in fact, delays the proceedings in Congress.
Now, under 1512(c)(2), that might be corruptly impeding a proceeding, an official proceeding. Could -- is that core and therefore immunized, or whatever word, euphemism you want to use for that?
DREEBEN: So...
GORSUCH: Or is that not core and therefore prosecutable...
DREEBEN: Well, I -- it's...
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...
GORSUCH: Why?
DREEBEN: ... of why I don't think that that would be a prosecution that would be valid.
First, I think you need to run through all of the sort of normal categories of analysis. Is there a serious constitutional question that's posed by applying that statute to the president? If so, then you may well default to, it does not apply, at least on that fact pattern.
GORSUCH: Well, I thought you said it -- that was my question.
DREEBEN: Yes, I understand.
GORSUCH: And you said it fell outside that core, we will call it immunity for simplicity's sake.
[11:20:04]
DREEBEN: Yes, I understand.
GORSUCH: But -- so they couldn't...
DREEBEN: But there's a -- there's a separate category...
GORSUCH: OK, so why couldn't he be prosecuted for leading a civil rights protest in front of the Capitol that delays a vote on a piece of important legislation?
DREEBEN: So, I think what you need to do is run through all of the very president-specific protective layers of analysis.
So, one of them is whether the statute would be construed not to apply to his conduct. Even if it's not part of that small core of things that Congress can't regulate at all, if it operates to prevent the president from fulfilling his Article 2...
GORSUCH: No, he could have given speeches against it. He did.
DREEBEN: Yes.
GORSUCH: But he left -- he did something more, and it corruptly impeded and sought to influence an official proceeding.
DREEBEN: Well, so I don't know -- we're starting with the layers, I think, of protection.
And we're now down through whether the statute would be construed to apply to him. Then there'd be a question of whether... GORSUCH: Assume it does.
DREEBEN: I will assume it.
Then there's a question of whether he has the state of mind necessarily to violate it.
GORSUCH: Assume it does. Corrupt...
DREEBEN: OK.
GORSUCH: Nobody knows what corrupt intent means. We have been around that tree twice already.
DREEBEN: We will probably find out.
GORSUCH: And maybe it means that he knows that he was doing wrong, is what the government told us.
DREEBEN: Perhaps. Right.
GORSUCH: He knows he's doing wrong. He knows he shouldn't be up there blocking congressmen from...
(CROSSTALK)
DREEBEN: Well, let me get to the next layer then, which is that the president does have access to the attorney general to provide legal advice and regularly gets legal advice from the attorney general on the lawful scope of the president's activities.
We could go down two tracks here. One is that the attorney general advises him that, as an incident of his Article 2 authority and in carrying out the functions of the presidency, he can lawfully participate in that protest. It's kind of the First Amendment analog to the president's official powers, which the court is exploring in other cases.
Alternatively, the attorney general could advise him: I'm sorry, Mr. President, there's nothing in the language of this statute that carves you out. I don't see a serious constitutional question in it...
GORSUCH: I got it.
DREEBEN: ... because you don't have to do that. And I would advise you not to violate the criminal law.
GORSUCH: And then -- and then he could be prosecuted?
DREEBEN: No.
GORSUCH: No? If he gets a negative opinion from the attorney general, he still couldn't be prosecuted?
DREEBEN: I'm going to assume that most presidents are not going to take in a... GORSUCH: Well, but if he gets one and does it anyway, then he could be prosecuted?
DREEBEN: Well, so then, if we are down at that level, I think what we are really asking is whether the president is subject to the criminal law.
GORSUCH: And...
(CROSSTALK)
DREEBEN: And our answer is, yes, he is subject to the criminal law. But...
SONIA SOTOMAYOR, U.S. SUPREME COURT ASSOCIATE JUSTICE: Mr. Dreeben, can we go back to the bribery statute?
I, like you, understand that the only thing that is covered by that is the president is barred from soliciting or receiving funds in any room or building in the United States.
DREEBEN: That is -- that is correct. And it's an extremely...
SOTOMAYOR: Official building. It's a very limited...
DREEBEN: Yes.
SOTOMAYOR: ... mention of the president.
DREEBEN: And it really, I think, under...
SOTOMAYOR: Can -- can -- so, as I understand this, there's two very limited provisions mentioning the president as included.
DREEBEN: That's right.
SOTOMAYOR: There's a whole number of provisions that exclude the president, many, many, many more that exclude the president, correct?
DREEBEN: It's a kind of small number on both sides of the...
(CROSSTALK)
SOTOMAYOR: Now, Justice Barrett made the point that, if we say a president can't be included in a criminal law unless explicitly named, then that would bar the Senate from impeaching him for high crimes or misdemeanor, because that means that he's not subject to the law at all, correct?
DREEBEN: So, I think...
SOTOMAYOR: That's a tautology you can't escape.
DREEBEN: Justice Sotomayor, what I think that Justice Barrett was saying, and we would agree with it, is that, under my friend's position, after impeachment, he could be prosecuted, but under his statutory construction approach, there'd be nothing to prosecute him for.
SOTOMAYOR: Exactly. That's the point, which is...
DREEBEN: Exactly.
SOTOMAYOR: ... if he's not covered by the criminal law, he can't be impeached for it...
DREEBEN: Yes.
SOTOMAYOR: ... for violating it.
All right. Now, could we go further on this clear statement rule?
DREEBEN: Mm-hmm.
SOTOMAYOR: The situations, and you mentioned it earlier, in which we have looked to see if the president is covered is contextual, correct?
DREEBEN: Correct.
SOTOMAYOR: And what are the factors that generally we will look at? I'm thinking specifically about whether the APA covers the president.
DREEBEN: Correct.
SOTOMAYOR: And what we did there was to analyze what powers were being given to -- in the lawsuit, and et cetera. We looked at words. We looked at structured. We looked at separation of powers issues relating to our case law that said you can't direct the president to do anything, and this would have been a subterfuge for that, correct?
DREEBEN: All correct.
SOTOMAYOR: All right.
So I don't know why -- two of my colleagues, how they would fashion a clear statement rule that would say, when the law says any person can't accept the bribe, that that permits the president to do it.
[11:25:02]
DREEBEN: So, I agree, Justice Sotomayor, that the -- that the way that this court has interpreted statutes that do carve out the president -- Justice Kavanaugh asked about this -- was very context- specific.
The Franklin case basically involved a holding that we are highly unlikely to say that the president is an agency, something that the government said would be a peculiar understanding of agency, when the effect of it would be that we would review the president's decisions under statutes for abuse of discretion, which is a very extraordinary thing to do.
I think even going back to Marbury -- this is perhaps a point on which I agree with my friend -- Marbury says discretionary acts of the president are not the kind of thing that the court reviews.
SOTOMAYOR: All right, could I go back to your brief, and going back to what some of my colleagues have asked you?
There appears to be some narrowing principles to the concept that the president is subject to all criminal laws in all situations.
DREEBEN: Correct.
SOTOMAYOR: You agree that, if it affects core powers, then the -- he would not be subject to any laws that attempted to limit those core powers?
DREEBEN: That is correct.
SOTOMAYOR: Correct?
You're defining core powers as those specified by Article 2?
DREEBEN: That is essentially correct, yes.
SOTOMAYOR: All right. And the only words in the Constitution is that -- that have to do with the president in law is that he shall take care that the law be faithfully executed, correct?
DREEBEN: That's right.
SOTOMAYOR: Hard to imagine that a president who breaks the law is faithfully executing the law, correct?
DREEBEN: He has to execute all of the laws.
SOTOMAYOR: All right.
(CROSSTALK)
ALITO: Mr. Dreeben, do you really -- I mean, presidents have to make a lot of tough decisions about enforcing the law, and they have to make decisions about questions that are unsettled, and they have to make decisions based on the information that's available.
Do you really -- did I understand you to say, well, if he makes a mistake, he makes a mistake, he's subject to the criminal laws just like anybody else?
(CROSSTALK)
ALITO: You don't think he's in a special -- a peculiarly precarious position?
DREEBEN: He's in a special position for a number of reasons. One is that he has access to legal advice about everything that he does. He's under a constitutional obligation to be -- he's supposed to be faithful to the laws of the United States and the Constitution of the United States. And making a mistake is not what lands you in a criminal prosecution.
There's been some talk about the statutes that are at issue in this case. I think they are fairly described as malum in se statutes. Engaging in conspiracies to defraud the United States with respect to one of the most important functions, namely, the certification of the next president...
ALITO: Well, I don't want to dispute that particular application of that 371 conspiracy to defraud the United States to the particular facts here.
But would you not agree that that is a peculiarly open-ended statutory prohibition, in that fraud under that provision, unlike under most other fraud provisions, does not have to do -- doesn't require any impairment of a property interest?
DREEBEN: It's designed to protect the functions of the United States government. And it's difficult to think of a more critical function than the certification of who won the election.
ALITO: Yes, I'm not -- as I said, I'm not discussing the particular facts of this case, but it applies to any fraud that interferes seriously with any government operation, right?
DREEBEN: So what the government needs to show is an intent to impede, interfere, or defeat a lawful government function by deception, and it has to be done with scienter.
These are not the kinds of activities that I think any of us would think a president needs to engage in order to fulfill his Article 2 duties, and particularly in a case like this one.
I want to pick up on something that the court said earlier about the distinction between a public official acting to achieve public ends and a public official acting to achieve private ends.
As applied to this case, the president has no functions with respect to the certification of the winner of the presidential election. It seems likely that the framers designed the Constitution that way because, at the time of the founding, presidents had no two-term limit. They could run again and again and were expected potentially to want to do that.
So, the potential for self-interest would explain why the states conduct the elections. They send electors to certify who won those elections and to provide votes. And then Congress, in a joint -- extraordinary joint session, certifies the vote.
And the president doesn't have an official role in that proceeding. So, it's difficult for me to understand how there could
[11:30:00]
