Supreme Court Poised to Agree with Trump: Former Presidents Are Immune from Some Prosecutions

“Presidents have to make a lot of tough decisions about enforcing the law, and they have to make decisions about questions that are unsettled, and they have to make decisions based on the information that’s available,” he said. “Do you really, did I understand you to say, well, you know, if he makes a mistake, he makes a mistake; he’s subject to the criminal laws just like anybody else?”

Dreeben pushed back, arguing a president “has access to legal advice about everything that he does.”

“Making a mistake is not what lands you in a criminal prosecution,” Dreeben insisted.

Alito was dubious of Dreeben’s claim that a president enjoys a level of protection because federal grand juries would not indict without evidence. Alito cited the “old saw about indicting a ham sandwich,” continuing to ask, “You come across a lot of cases where the U.S. attorney or another federal prosecutor really wanted to indict a case and the grand jury refused to do so?”

Dreeben acknowledged that, after which Alito quipped, “Every once in a while, there’s an eclipse too,” to laughter.

The arguments, while positive for Trump, did not reveal the Court would universally agree with his position. There is no indication that a majority of justices would agree some kind of immunity exists that would summarily end the current prosecution.

But if there is some type of standard to determine immunity, the usual practice would be to strike the lower court’s opinion and send it back down to the lower court with the test – a remand that undoubtedly would be a victory for Trump’s legal team.