Supreme Court Justices Brett Kavanaugh and Neil Gorsuch probed the government’s position on which presidential actions could be prosecuted during Thursday’s arguments in Trump v. United States, focused on whether former President Donald Trump should have immunity for his role in alleged attempts to overturn the 2020 election.
The justices proposed a hypothetical scenario of a president leading a peaceful protest outside of the U.S. Capitol that went on to disrupt official proceedings.
“That might be correctly impeding an official proceeding. Is that ‘core’ and therefore immunized, or whatever word, euphemism you want to use for that? Or is that not core and therefore prosecutable?” Gorsuch asked.
Michael R. Dreeben responded that no, those are not core powers. However, he said, the president likely couldn’t be prosecuted, because he would be advised by his attorney general that either the actions were legal and he would be safe, or the actions were illegal and he shouldn’t participate.
Kavanaugh pressed Dreeben, suggesting hypothetically the president proceeds knowing it’s illegal.
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