Justice Ketanji Brown Jackson Invokes ‘The Former Guy’ Trump Nickname In Final Leg Of Supreme Court Immunity Hearing

Justice Ketanji Brown Jackson used President Joe Biden’s “the former guy” nickname for former President Donald Trump during the final minutes of a Supreme Court hearing on Trump’s claim of “absolute immunity.”

Biden first used the expression at a CNN town hall just weeks into his presidency, and it quickly became a nickname among administration officials and others as a way of avoiding using Trump’s name.

Justice Jackson invoked the nickname during the final minutes of the immunity hearing as she asked attorney Michael Dreeben to weigh in on the notion that administrations have an interest in protecting the presidency because today’s president is tomorrow’s “former guy”:

JUSTICE KETANJI BROWN JACKSON: A final sort of a set of questions that I have have to do with, what I do take as a very legitimate concern about, prosecutorial abuse, about future presidents being targeted for things that they have done in office. I take that concern — I think it’s a real thing, but I wonder whether some of it might also be mitigated by the fact that existing administrations have a self-interest in protecting the presidency. That they understand that if they go after the former guy, soon, they’re going to be the former guy, and they will have created precedent that will be problematic.

So I wonder if you might comment on whether some of the caution from the Justice Department and the prosecutors and whatnot comes from an understanding that they will soon be former presidents as well?

MICHAEL DREEBEN: I think absolutely. And I would locate this as a structural argument that’s built into the Constitution itself. The executive branch, I think, as this court knows, has executive branch interests that it at times asserts in opposition to Congress so that the proper functioning of the president is protected. And I believe that that value would be operative and is operative in anything as momentous as charging a former president with a crime.

JUSTICE KETANJI BROWN JACKSON: And I would also say, I think and ask you to comment on, you know, presidents are concerned about being investigated and prosecuted. And it chills to some extent their, you know, ability to do what they want in office. And that’s a concern on one side.

But can you comment on the concern about having a president unbounded while in office, a president who knows that he does not have to ultimately, follow the law because there is really nothing more than, say, political accountability in terms of, of impeachment.

I mean, we have amicus briefs here from Professor Lederman, for example, who says, you know, a president would not be prohibited by statute from perjuring himself under oath about official matters, from corruptly altering, destroying, or concealing documents to prevent them from being used in an official proceeding from suborned others to commit perjury, from bribing witnesses or public officials.

And he goes on and on and on about the things that a president in office, with the knowledge that they have no criminal accountability would do. I see that is a concern that is at least equal to the president being worried, so worried about criminal prosecution that he, you know, is a little bit limited in his ability to function.

So can you talk about those competing concerns?

MICHAEL DREEBEN: So, Justice Jackson, I think it would be a sea change to announce a sweeping rule of immunity that no president has had or has needed. I think we have also had a perfectly functioning system that has seen occasional episodes of presidential misconduct. The Nixon era is the paradigmatic one. The indictment in this case alleges another. For the most part, I believe that the legal regime and the constitutional regime that we have works and to alter it poses more risks.

JUSTICE KETANJI BROWN JACKSON: Thank you.

MICHAEL DREEBEN: Thank you.

CHIEF JUSTICE JOHN ROBERTS: Thank you. Counsel. Rebuttal. Mr. Sauer?

JOHN SAUER: I have nothing further, Your Honor.

CHIEF JUSTICE JOHN ROBERTS: Thank you. Counsel. Counsel, the case is submitted.

Watch above via CNN’s Trump on Trial: Presidential Immunity coverage.