The lawyer representing special counsel Jack Smith on Thursday asserted that the reason former President Donald Trump is the first president to face criminal charges is because his predecessors did not commit any crimes.
Department of Justice counselor to Smith, Michael Dreeben, went before the Supreme Court to argue presidents should not have constitutional immunity from prosecution for official acts conducted during their presidency. Dreeben suggested that no president until Trump has ever committed crimes when Supreme Court Justice Clarence Thomas questioned him about no other president having faced prosecutions.
“Over the not-so-distant past … certain presidents have engaged in various activity, coups or operations like Operation Mongoose, when I was a teenager, and yet there were no prosecutions,” Thomas said. “Why? If what you’re saying is right, it would seem that would have been ripe for criminal prosecution of someone.”
“So Justice Thomas, I think this is a central question,” Dreeben responded. “The reason why there have not been prior criminal prosecutions is that there were not crimes.”
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The Supreme Court consented in February to hear Trump’s argument to dismiss his federal election interference case in Washington, D.C., based on presidential immunity. Trump was not permitted to attend the oral arguments as New York Judge Juan Merchan ordered him to remain at his trial regarding an alleged $130,000 payout to porn star Stormy Daniels.
“You raise the question about potential overseas taking of life and the Office of Legal Counsel has addressed this quite specifically,” Dreeben added. “There is a background principle of criminal law, called the public authority exception to liability, and it is read into federal law unless Congress takes specific action to oust it, which it never has done as far as I’m aware.”
Smith claimed in December that Trump’s immunity argument, if successful, would protect presidents who order the murder or framing of political opponents.
Trump’s attorney Dean John Sauer argued on Thursday that a president may have criminal immunity for staging a coup after a liberal justice presented him with a hypothetical.
