Supreme Court Justice Brett Kavanaugh on Thursday raised concerns with special counsel Jack Smith’s lawyer, Michael Dreeben, about the possibility of a “creative prosecutor” exploiting a “vague statute” to pursue charges against a president for official actions conducted in the Oval Office during oral arguments concerned former President Donald Trump’s immunity claim.
“Do you agree that there are some aspects of Article II presidential power that are exclusive and that Congress cannot regulate and cannot criminalize?” Justice Kavanaugh asked.
“Absolutely,” Dreeben responded.
“For other official acts that the president may take that are not within that exclusive power, assume for the sake of argument this question that there’s not blanket immunity for those official acts. But that to preserve the separation of powers, to provide fair notice to make sure Congress has thought about this, that Congress has to speak clearly to criminalize official acts of the president by a specific reference,” Kavanaugh asked.
Dreeben responded that he does not agree with a “broad proposition that unless the president is specifically named, he’s not in the statute.”
“And I don’t think that that’s necessary in order to afford adequate protection for the president’s valid articles to function,”Dreeben argued.
“You said unless there’s a serious constitutional question,” Kavanaugh interjected.
“Well…it’s a serious constitutional question whether a statute can be applied to the president’s official acts. So wouldn’t you always interpret the statute not to apply to the president, even under your formulation, unless Congress had spoken?” he pressed .
“Well, I don’t think across the board that a serious constitutional question exists applying any criminal statute to the president,” Dreeben responded.
“The problem is the vague statute, you know, obstruction and… conspiracy to defraud the United States can be used against a lot of presidential activities, historically, within a creative prosecutor who wants to go after a president,” Kavanaugh stated.
“I think that the question about the risk is very serious. Obviously, it is a question that this court has to evaluate. For the executive branch, our view is that there is a balanced protection that better serves the interests of the Constitution, that incorporate both accountability and protection for the president,” Dreeben responded.
