Future concerns

However multiple times, Roberts and other conservatives on the court expressed concerns about the precedent the case could set.

Roberts raised concerns about the “tautological” self-affirming holding of the appellate court, which he said held “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.”

Kavanaugh said he was “concerned about the future” of the country if former presidents have to worry about prosecution and pointed to prior alleged abuses of presidencies by the independent counsel system.

Similarly, Justice Neil M. Gorsuch pointed out that almost everything a first-term president does could be construed as benefiting their reelection — opening up the justice system to the “dangerousness of accusing your opponent of a bad motive.”

And Gorsuch said that allowing former presidents to be prosecuted might create an incentive for presidents to try to pardon themselves as they leave office. “We’ve never answered whether a president can do that. Happily, it’s never been presented to us.”

Dreeben said it would be a “sea change” for the court to allow for blanket presidential immunity. For years presidents have assumed they could face criminal prosecution for their actions, a fact “cemented” by President Gerald Ford’s pardon of Richard Nixon.

Dreeben told the justices there may be some cases where courts could decide a criminal statute could not apply to a former president, but those should be decided on their own terms.

“There is no immunity, that is in the Constitution. Unless this court creates it today,” Dreeben said.

In response to questions from Kavanaugh and Gorsuch, Dreeben also cautioned the justices against a ruling that Congress must explicitly say the president is included in specific criminal statutes, which Congress has almost never done.

...continued

©2024 CQ-Roll Call, Inc., All Rights Reserved. Visit cqrollcall.com. Distributed by Tribune Content Agency, LLC.