Clarence Thomas Kicks Off Trump Immunity Hearing By Saying Past Presidents Have Been Part Of Coups Without Prosecution
Justice Clarence Thomas asked the first question after Michael Dreeben, who was arguing against Donald Trump’s claims of absolute presidential immunity for special counsel Jack Smith, wrapped his opening statement in Thursday’s Supreme Court hearing.
Dreeben argued that no president should have immunity from committing “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,” Dreeben continued, adding:
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.
Thomas then asked, “Mr. Dreeben, does the president have immunity? Or, are you saying that there’s no immunity, presidential immunity, even for official acts?”
“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 Two branch, can assert as applied Article Two 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,” Dreeben replied, adding:
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 then followed up, “In the 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 if what you’re saying is right, it would seem that that would have been ripe for, criminal prosecution of someone.”
Dreeben replied, “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.”
Watch the full clip above.
