Justice Alito Questions Attorney On Presidential 'Special Protection' Versus 'Immunity'

8 months ago

The Supreme Court heard oral arguments in Trump v. United States on Thursday.

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Transcript

00:00You dispute the proposition that a former president has some form of immunity.

00:07But as I understand your argument, you do recognize that a former president has a form

00:13of special protection, namely that statutes that are applicable to everybody must be interpreted

00:22differently under some circumstances when they are applied to a former president.

00:26Isn't that true?

00:27It is true because, Justice Alito, of the general principle that courts construe statutes

00:33to avoid serious constitutional questions.

00:36And that has been the longstanding practice of the Office of Legal Counsel in the Department

00:40of Justice.

00:41All right.

00:42So this is more, I think, than just a quarrel about terminology, whether what the former

00:50president gets is some form of immunity or some form of special protection, because it

00:56involves this difference, which I'm sure you're very well aware of.

00:59If it's just a form of special protection, in other words, statutes will be interpreted

01:04differently as applied to a former president, then that is something that has to be litigated

01:11at trial.

01:12The former president can make a motion to dismiss and may cite OLC opinions.

01:18And the district court may say, well, that's fine.

01:21I'm not bound by OLC.

01:23And I interpret it differently.

01:25So let's go to trial.

01:27And then there has to be a trial.

01:29And that may involve great expense.

01:33And it may take up a lot of time.

01:35And during the trial, the former president may be unable to engage in other activities

01:41that the former president would want to engage in.

01:44And then the outcome is dependent on the jury, the instructions to the jury, and how the

01:50jury returns a verdict.

01:52And then it has to be taken up on appeal.

01:55So the protection is greatly diluted if you take the form, if it takes the form that you

02:01have proposed.

02:02And why is that better?

02:04It's better because it's more balanced.

02:06The blanket immunity that petitioner is arguing for just means that criminal prosecution is

02:14off the table unless he says that impeachment and conviction have occurred.

02:20Those are political remedies that are extremely difficult to achieve in a case where the misconduct

02:26occurs close to the end of a president's term.

02:29Congress is unlikely to crank up the machinery to do it.

02:32And if the impeachment trial has to occur after the president has left office, there's

02:36an open question about whether that can happen at all.

02:40You're arguing against most far-reaching aspects of Mr. Sauer's argument, right?

02:48That is correct.

02:49Let me turn, then, to why.

Justice Alito Questions Attorney On Presidential 'Special Protection' Versus 'Immunity'

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