Y ou don’t win an oral argument by painting a picture of reality that the judges don’t recognize. It’s an even worse idea to tell them to just blindly trust the judgments of others in deciding what the law is. That’s what government lawyer Michael Dreeben tried on Thursday in the Supreme Court argument over presidential immunity in Trump v. United States. Dreeben, a veteran advocate who has made more than 100 Supreme Court arguments, unaccountably acted as if he’d forgotten that he was arguing before a Court that believes in the rule of law — not the rule of lawyers.

In my first installment on the oral argument, I covered the argument by John Sauer, the lawyer for Donald Trump, and the stakes in the argument, including the fact that Sauer was playing largely for delay and Dreeben was fighting for anything that could get the case to trial before the election. Andy McCarthy has also covered what Dreeben’s argument shows us about the involvement of Joe Biden and his Justice Department in Jack Smith’s case. Let’s focus here on Dreeben’s strategy for briefing and arguing this case and why it was so perverse. I’ll leave for another day my own thoughts on how this case should be decided.

Dreeben’s Goals

On the merits of the Trump case, what Dreeben wanted was a standard that would declare as much of Smith’s indictment as possible to be outside of any immunity. Procedurally, he wanted a standard that would divide non-immunized conduct from any immunized conduct by as bright a line as possible, so that the case could be remanded without a need for a ton of pretrial evidentiary hearings on immunity and, possibly, additional appeals from those. Institutionally, in theory, he was trying to keep open the path to prosecute future presidents who may abuse their official powers in ways not at issue in this case.

Dreeben, however, also had two other incentives that he couldn’t make explicit. One was to craft a standard that, without immunizing Trump, would insulate his actual client, Joe Biden, from future prosecutions for his lawless abuses of presidential powers. The other was to maximize the institutional power of the Department of Justice, even at the expense of the president and the court system. These latter two incentives help explain how he went so wrong.

Clear Statements

There’s a further wrinkle to this case that I didn’t get into in the first installment, and that informed the choices made by Dreeben and Sauer and might end up swaying the justices: the “clear statement” principle. That principle asks whether Congress has actually made it a federal crime in the first place for the president to perform some of his official acts — and if so, whether Congress has the power to do that. If Trump’s official acts are therefore not crimes, there is no need to ask whether he has immunity from prosecution for them.

Many of the president’s powers are defined by Congress. Thus, for example, Congress passes laws, and the president enforces them; Congress creates offices, and the president fills them; Congress declares wars, and the president directs how to fight them. But the Court and the executive branch have both long recognized that there are presidential powers that Congress can’t take away or regulate — and that would be a problem if Congress tried to criminalize the use of those powers.

The courts thus typically try to avoid reading statutes to cover the president if there’s a risk that doing so might raise constitutional issues about Congress weakening the constitutional separation of powers. There’s some appeal to originalists in focusing on this question: While the originalist support for presidential immunity is far from clear, originalist judges are protective of the strict separation of powers. The text of Articles I, II, and III speak in terms of clear delineation of the legislative, executive, and judicial powers, and historical evidence shows overwhelmingly that it was the most common ground among the Framers at Philadelphia in 1787.

The Office of Legal Counsel within the Department of Justice has long taken the position — dating back to the mid 1970s, formalized by the mid 1990s, and continued through presidencies of both parties — that the president should consider himself bound by federal statutes and act accordingly only if those statutes contain a “clear statement” that the law binds the president. (See here and here for Jack Goldsmith’s explanation of the principle). I call it a principle rather than a rule, however, because while there is conceptual support for it in the caselaw, the Supreme Court has yet to adopt it as a rule governing all federal criminal statutes, nor has the Court developed how broadly it would sweep if it does.

The clear-statement principle presented differing temptations for Dreeben and for Sauer. The advantage for Dreeben is that redirecting the discussion from immunity could make a case for a standard that isn’t immediately appealable. For Sauer, it offers some immediate delay: The Court would likely send the case back down rather than make its own decision on which, if any, of the four statutes involved would cover presidential acts (assuming its decision in Fischer doesn’t take the Section 1512(c)(2) charge off the table anyway).

Dreeben’s Options

Take stock, if you will, of the strengths and weaknesses of Dreeben’s position going into this argument, some of which had led him to commit himself in the government’s brief.

Strengths:

Weaknesses:

Given this landscape, Dreeben’s best bet was to lean hard into winning the case on the narrow grounds that (1) this indictment doesn’t involve a lot of official acts, (2) the Court should avoid judicially creating an immunity rule today without a firm originalist foundation, and (3) the Court to go no further than necessary to decide this case.

That’s not what he chose to do.

Trust Us. We’re from the Government

Dreeben gave a nod in his opening statement to the originalist argument, but he immediately started leaning into the claim that the justices should not worry about politicized prosecutions because “established legal safeguards provide layers of protections, with the Article III courts providing the ultimate check” against abusive prosecutions. As he told Justice Clarence Thomas: “There are layers of safeguards that assure that former presidents do not have to lightly assume criminal liability for any of their official acts.” (Emphasis mine.) Of course, the immunity issue isn’t just about the risk of criminal liability, but criminal investigation and prosecution. The process can be the punishment — such as the risk that, say, a former president running to get the office back might be trapped in courtrooms all summer defending charges brought by his election opponent, who is out on the campaign trail.

Dreeben also went with the “trust us, he’s guilty” argument: “The reason why there have not been prior criminal prosecutions is that there were not crimes.” Chief Justice John Roberts took that poorly:

CHIEF JUSTICE ROBERTS: The court of appeals below . . . 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?

Mr. DREEBEN: Well, I think it sounds tautologically true. . .

CHIEF JUSTICE ROBERTS: Well, . . . 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. As I read it, it says simply a former president can be prosecuted because he’s being prosecuted.

Dreeben took a similar approach in telling Thomas that a president couldn’t be prosecuted for droning people because “OLC went through an extensive analysis on why the public authority defense would prevent it from being considered a violation of law to go after a terrorist, for example.” Yes, but that assumes the very thing a prosecutor and jury might quarrel with: that the target was a terrorist.

For Dreeben’s next gambit, he argued that there’s nothing to worry about because “the allegations have to be presented to a grand jury, which votes upon the indictment.” Roberts wasn’t buying that: “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 . . . good faith of the prosecutor may not be enough in . . . some cases.” Justice Samuel Alito, himself a former United States attorney, responded caustically:

JUSTICE ALITO: How much protection is that?

Mr. DREEBEN: Well, it . . . affords two levels of protection. One is the probable cause finding requires evidence. I think some of the fears about groundless prosecutions aren’t supported by evidence. And they’re not going to get out of the starting gate.

JUSTICE ALITO: I mean . . . there’s the old saw about indicting a ham sandwich. . . . You had a lot of experience in the Justice Department. You come across a lot of cases where the — the U.S. attorney or another federal prosecutor really wanted to indict a case and the grand jury refused to do so?

Mr. DREEBEN: There are such cases.

JUSTICE ALITO: Are there?

Mr. DREEBEN: Yes. . . .

ALITO: Every once in a while there’s an eclipse too.

(Laughter.)

Alito also noted that two former attorneys general had been convicted of crimes, and cited A. Mitchell Palmer as another AG who sanctioned serious assaults on civil liberties. The best Dreeben could do is stammer that those were rare exceptions. But they were exceptions who prosecuted a lot of people, including (in Palmer’s case) a presidential candidate who had run against his boss.

Justice Brett Kavanaugh, who spent years on the staff of Kenneth Starr’s independent-counsel office in the 1990s, drove home the damage that could be done by political prosecutions — and added an ode to Justice Antonin Scalia’s dissent in Morrison v. Olson. Quoting Scalia’s view that “the fairness of a process must be adjudged on the basis of what it permits to happen,” he continued:

JUSTICE KAVANAUGH: I think that was a terrible decision for the presidency and for the country. . . . President Reagan’s administration, President Bush’s administration, President Clinton’s administration were really hampered. . . . What I’m worried about here is that [attitude of] let’s relax Article II a bit for the needs of the moment. . . . That was a prosecutor investigating a president in each of those circumstances. And someone picked from the opposite party . . . the history of Morrison versus Olson tells us it’s not going to stop. It’s going to . . . cycle back and be used against the current president or the next president . . . and the next president and the next president after that.

Dreeben emphasized in response (undoubtedly to the wincing of Biden and Merrick Garland) that the special counsel, unlike the independent counsel, is directly politically accountable to the attorney general. But then he defended Lawrence Walsh — the poster boy in legal-conservative circles of the day for a runaway prosecutor — while downplaying the damage done by political investigations — a double-whammy of failing to know his audience:

Mr. DREEBEN: Even under that regime, Justice Kavanaugh, I think, if you look at Lawrence Walsh’s report on Iran/Contra, I think this goes to a very fundamental point for the Court to consider. Judge Walsh said: I investigated these matters. The proof did not nearly come close to establishing criminal violations. So we’ve lived from Watergate through the present, through the independent counsel era with all of its flaws, without these prosecutions having gone off on a runaway train. . . . Nobody likes being investigated for a crime, but it didn’t result in the kind of vindictive prosecutions that I think Your Honor is . . . raising as a possibility.

“Nobody likes being investigated” is an egregious understatement of how much the independent-counsel investigations dominated Washington between 1987 and 1999. Dreeben claimed that he was “not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith, for political animus, without adequate evidence” because such things can’t happen in America:

A politically driven prosecution would violate the Constitution under Wayte versus United States. It’s not something within the arsenal of prosecutors to do. Prosecutors take an oath. The attorney general takes an oath . . . the courts stand ready to adjudicate motions based on selective prosecution, political animus.

Who is he kidding here? Dreeben knows perfectly well that it’s nearly impossible to win a motion to dismiss a prosecution on a selective-prosecution theory — indeed, Wayte itself was a 7–2 defeat for such a claim. Moreover, it is both legally wrong and factually ridiculous to say that prosecutors lack the power to bring politically motivated charges, or that political motivation by itself is a ground upon which courts will dismiss those charges.

Let the Federal Government’s Lawyers Decide

A crucial theme that Dreeben returned to again and again was not just the trustworthiness of the DOJ in its offensive capacity as prosecutor, but the crucial role of getting DOJ advice in forming a president’s defense, and the lawgiving nature of DOJ’s adoption of the clear-statement principle. Dreeben presented the clear-statement principle as a major safeguard even though the principle itself has not yet been adopted by the Court, and even though he read it much more narrowly than Sauer did.

On the critical role of DOJ advice in insulating the president, when Alito asked if presidents are especially vulnerable to legal second-guessing, Dreeben told him that the important thing about the president’s “special position” is that “he has access to legal advice about everything that he does.” When Justice Neil Gorsuch asked, “If he gets a negative opinion from the attorney general, he still wouldn’t be prosecuted?” Dreeben responded, “I’m going to assume that most presidents are not going to” disregard the DOJ’s legal advice. But even then, when the DOJ puts on its prosecutor hat, it can say — as Dreeben told Justice Amy Coney Barrett — that the defense of advice of counsel “operates based on objective facts disclosed to counsel,” so there’s always a risk that the DOJ might say later that not all the facts were properly disclosed. Dreeben told Justice Thomas, “It would be a due-process problem to prosecute a president who received advice from the attorney general that his actions were lawful absent the kind of collusion or conspiracy that itself represented a criminal violation, which I don’t really see as being a realistic option.” (Emphasis mine.) But he’s giving himself an out to say later that the president’s legal advice was the result of “collusion or conspiracy” with his lawyers.

In short: The president is bound by the law if the DOJ says he is; it’s a crime if the DOJ decides it is; and he’s safe if the DOJ told him he can do it, unless it changes its mind later. This is rule-of-lawyers mindset run wild, in which all the trump cards are held by the same Justice Department in which Dreeben has spent most of his career. It’s an argument for concentrated power in a single agency that is incredibly poorly calculated to win over this Court.

Unclear Statements

While Sauer argued that the clear-statement principle requires explicitly naming the president, the government’s brief argued the contrary:

The express text of nearly all federal criminal laws covers all persons, including the President. The statutes under which petitioner has been indicted are illustrative. They use the terms “[w]hoever” and “person[]” to describe their coverage. . . . Both terms naturally include individuals who occupy government offices such as the Presidency. . . . Congress knows how to exclude the President from a broadly defined term when it wishes to do so. . . . No evidence exists that Congress intended courts to graft an extra-textual exception for the President into all the other federal criminal laws in which he is not specifically named.

Instead, Dreeben argued that the clear-statement principle is essentially a case-by-case analysis in which particular presidential “core presidential” functions are carved out of the coverage of statutes, leaving them to apply to the president sometimes, and sometimes not. Guess who decides that?

“There is such a possibility as an unlawful executive act,” Dreeben told Barrett. How much protection does the clear-statement principle provide? Dreeben’s answer: “The general principles, I think, kind of emerge from looking at what the Office of Legal Counsel has done.” Thus, for example, he contended that the contempt of Congress statute would not criminalize “a good-faith assertion of executive privilege” (emphasis mine), which raises the question of whether good faith is determined retrospectively by twelve jurors in a jurisdiction where the former president is unpopular.

When asked about particular statutes, Dreeben’s answer was “it depends” — that a statute might apply to the president in some factual contexts and not others, giving the DOJ the maximum latitude to decide when to bring charges. Thus, when Gorsuch tried to pin him down on whether the president could be prosecuted under Section 1512(c)(2) for leading a sit-in or a “civil rights protest” to prevent Congress from meeting, Dreeben first said that the clear-statement principle may not apply because the sit-in is not a “core” presidential function, but then punted: “I think you need to run through all of the sort of normal categories of analysis. Is there a serious constitutional question that’s posed by applying that statute to the president? If so, then you may well default to it does not apply at least on that fact pattern.” (Emphasis mine.) Again, Dreeben prefers that the Court let him keep his options open to have one rule for Trump and a different rule for a Democrat.

Dreeben asserted that “the Article I branch and the Article II branches are aligned in believing that this prosecution is an appropriate way to enforce the law, Congress by making the law, the current executive by deciding to bring it.” (Emphasis mine.) As if the Congresses that passed any of these open-ended laws decades or centuries ago gave even the remotest consideration to the unprecedented lengths to which Smith has extended them.

Perhaps even more laughable was Dreeben’s effort to argue that the Section 371 “conspiracy to defraud the United States” statute — which Smith claims to prohibit any thwarting of federal-government functions — should be read to constrain the presidency. Dreeben’s theory is that Section 371 is a “malum in se” statute — i.e., the sort of thing that has been regarded as morally bad throughout the history of the common law, rather than a “malum prohibitum” crime that makes some acts crimes simply because there’s a law passed against them. This is preposterous. First of all, what the federal government’s functions are depends upon what laws Congress passes and what regulations the agencies adopt. Second, we had no such law until the 1860s. Moreover, in most cases — the certification of electors being a very rare exception — the government functions that Section 371 protects from fraud are executive functions such as the collection of taxes. The president is continually involved in decisions about how to carry out those functions. If, like Biden, he decides not to enforce some laws, has he thwarted lawful government functions? Dreeben blithely assured the Court that acts potentially criminalized under Section 371 are “not the kinds of activities that I think any of us would think a president needs to engage in, in order to fulfill his Article II duties,” but there are many such cases. Once again, the line between a lawful decision to thwart the enforcement of laws and a criminal conspiracy is entirely up to the DOJ to decide.

The same issue arose when Dreeben argued that it’s a core presidential function to send cabinet officials to testify on Capitol Hill, yet “information that is intentionally and knowingly false” can still be prosecuted. Can presidents be indicted for conspiring to mislead Congress? Grand jurors in D.C. can decide!

Would prosecutors ever charge presidents with crimes based upon the exercise of their core constitutional powers? Dreeben may have forgotten, as Goldsmith has noted, that Robert Mueller — who, in theory, was politically accountable to Jeff Sessions, William Barr, and Donald Trump — argued that Trump had violated Section 1512(c)(2) by official acts such as removing the FBI director. Mueller contended that only the DOJ policy against indicting sitting presidents prevented him from charging Trump for doing that — if he’d finished his work under Garland, he’d have brought that as a criminal charge. Would the clear-statement rule, as Dreeben described it, have protected Trump’s power to remove a senior executive branch official? If not, couldn’t these statutes resurrect the unconstitutional Tenure of Office Act, but with more teeth?

Alito grilled Dreeben about whether Franklin D. Roosevelt could have been prosecuted for Japanese-American internment “under 18 U.S.C. 241, conspiracy against civil rights,” one of the statutes used in the Trump indictment. Dreeben’s response: “Today, yes,” but only because the Supreme Court’s Korematsu decision has since been overturned; at the time, “President Roosevelt made that decision with the advice of his attorney general” and it “occurred during wartime. It implicates a potential commander in chief concerns, concerns about the exigencies of national defense that might provide an as-applied Article II challenge at the time.” (I suppose it is nice to hear Biden’s lawyer say that Biden’s hero, FDR, did things that would get him sent to federal prison today. The arc of history bends slowly.) This, again, does not sound like a very clear guideline other than “do what the DOJ tells you.” Alito made the point about how uncertain that is: “I thought Attorney General Biddle thought that there was really no threat of sabotage, as did J. Edgar Hoover.”

Later, when Gorsuch pressed him for clarity, Dreeben again retreated to saying, “The Department has not had to take a position on exactly how these core powers would be resolved under an as-applied constitutional analysis.” The Court and the president will find out what the laws is when the Justice Department tells them! Some safeguard.

I Will Gladly Pay You Tuesday for a Trial Today

After Dreeben embraced the clear statement principle as a protection against presidential prosecutions, Alito called him out for supporting immunity by another name (Gorsuch openly called it a “euphemism”) but doing so in a way calculated to remove the up-front procedural protections offered by immunity:

JUSTICE ALITO: This is more, I think, than just . . . a quarrel about terminology, whether what the former president gets is some form of immunity or some form of special protection because it involves this difference which I’m sure you’re very well aware of . . . that is something that has to be litigated at trial. The . . . former president can make a motion to dismiss and may cite OLC opinions, and the district court may say: Well, that’s fine, I’m not bound by OLC and I interpret it differently, so let’s go to trial.

And then there has to be a trial, and that may involve great expense and it may take up a lot of time, and during the trial, the . . . former president may be unable to engage in other activities. . . . So the protection is greatly diluted if . . . it takes the form that you have proposed. Now why is that better?

The best Dreeben could muster is that it’s bad if “criminal prosecution is off the table,” but if you’re arguing that the president should win on his legal defense in the end, what is gained by dragging out the process?

When Dreeben said that the president’s official defenses should go to the jury, and Barrett asked, “Why would it be so bad for it not to be a jury question?” Dreeben didn’t really have an answer: “Would there be costs in going to trial? Yes. There is no perfect system here. We are trying to design a system that preserves the effective functioning of the presidency and the accountability of a former president under the rule of law.”

Know Your Own Case

Dreeben repeatedly acted as if he was unaware of what was in the indictment he was defending. His entire theme about the trustworthiness of the Justice Department and the political checks on its abuse ignored the fact that he’s defending an indictment that specifically charges the president with attempting to abuse the Justice Department’s investigatory powers. To the contrary, he claimed that “the allegations about the misuse of the Department of Justice to perpetuate election fraud show exactly how the Department of Justice functions in the way that it is supposed to.” But that assumes that the DOJ prevents the president from getting his way — when constitutionally, he has the power to get his way.

To Kavanaugh, when asked about using a Section 371 conspiracy charge against Lyndon Johnson for lies about the Vietnam War, Dreeben responded, “Statements that are made by a president to the public are not really coming within the realm of criminal statutes. They’ve never been prosecuted.” Really? Smith’s indictment is built around the charge that Trump “spread lies” in public, and paragraphs 19, 32, 33, 34, 37, 41, 42, 44, 46, 50, 52, 87, 88, 96, 99, 100, 104, 111, 116, and 118 all detail public speeches, tweets, video messages, campaign press releases, and even retweets for which Trump is being prosecuted.

Bragg and Willis under the Bus

One thing that really stuck out about Dreeben’s DOJ-centric argument was that he refused to offer the same high-handed assurances when asked about state prosecutions of former presidents. Barrett noted that his assurances about the Solomonic impartiality and yet sensitive political accountability and unified decisionmaking structure of the DOJ “are not applicable at the many, many, many, many state and local jurisdictions across the country.” Dreeben’s response:

That raises a Supremacy Clause issue. . . . The states do not have the authority to burden federal functions. . . . If the Court thought that you needed a more categorical rule for the states, I think the Supremacy Clause certainly leaves it within the Court’s prerogative to determine that the president, unlike all other officials, deserves more of a robust federal defense than what I have just described. . . . I don’t know that you would have to design a system in which the president would have to stand trial at the state and local level.

Alvin Bragg and Fani Willis, don’t mind the tire tracks from going under the bus.

After Dreeben’s performance, the Court asked Sauer if he had anything to add in rebuttal. He said no. When your adversary is making a mistake, don’t get in his way.