U.S. Supreme Court Chief Justice John Roberts took issue Thursday with the appeals court ruling’s language denying former President Donald Trump’s presidential immunity claim – language he understands to mean “a former president can be prosecuted because he’s being prosecuted.”
Roberts read aloud a piece of the court of appeals ruling on Thursday and asked Michael Dreeben, a Department of Justice (DOJ) counselor to the special counsel, if he agreed with it.
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“The court of appeals below, whose decision we’re reviewing, said, ‘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?” Roberts asked.
Dreeben said the ruling “sounds tautologically true, but I –I want to underscore that the obligation of a president is to take care that the laws are faithfully executed.”
Roberts said he agreed it was “tautologically true,” and for that reason, it worried him.
“Well, the –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,” he said. “As I read it, it says simply a former president can be prosecuted because he’s being prosecuted.”
Dreeben argued that is “not the government’s approach” and added that “a prosecution does, of course, invoke federal criminal law” and that grand juries vote to indict individuals based on allegations.
Roberts emphasized that it is often easy for prosecutors to secure an indictment from a grand jury and raised concerns about the potential for a prosecutor to not act in good faith while pursuing charges against a former president:
Well, that’s what I –I mean, shortly after that statement in the court — the 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. Now 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.
The case is Trump v. United States, No. 23-939 in the Supreme Court of the United States.
