The Supreme Court Might Put Trump Above the Law
But he also expressed concern about malicious prosecutions. “You know how easy it is in many cases for a prosecutor to get an indictment,” Roberts remarked to Dreeben, tacitly accepting Trump’s assertion that baseless prosecutions would inevitably occur without immunity. And at one point he seemed to assume that some form of presidential immunity existed by describing Dreeben’s position as “taking away immunity.” Dreeben quickly pushed back, saying there was no immunity to take away.
Justice Samuel Alito aired his practical concerns about the effects that a prosecution would have on a former president. “That may involve great expense, and it may take up a lot of time,” he warned. “And during the trial, the former president may be unable to engage in other activities that the former president would want to engage in, and then the outcome is dependent on the jury, the instructions to the jury, and how the jury returns a verdict and then it has to be taken up on appeal.” It was as if he had just learned how criminal prosecutions work for the first time.
It’s worth noting at this point that “presidential immunity” does not have any basis in the Constitution itself. The constitutional text describes a limited form of legislative immunity in the Speech and Debate Clause, proving that the Framers could have written down a form of presidential immunity if they wanted it to exist. And there is no history or tradition to support the notion of presidential immunity, either: simply because past presidents haven’t been charged with crimes doesn’t mean that current and future ones can’t be.