U.S. Supreme Court Justice Samuel Alito complained Thursday about the concept that a "special" former officeholder like Donald Trump could be expected to be "subject to the criminal laws just like anybody else."
Alito made the remarks to special counsel attorney Michael Dreeben during oral arguments in Trump's presidential immunity appeal to the high court. Trump's attorneys had argued the former president could not be charged with election interference because the office gave him immunity.
Dreeben, however, asserted Trump could be charged for trying to subvert the election.
"Well, Mr. Dreeben, do you really, I mean, the 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," Alito 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?"
"You don't think he's in a special, a peculiarly precarious position?" the justice asked.
"He's in a special position for a number of reasons," Dreeben explained. "One is that he has access to legal advice about everything that he does."
"He's under a constitutional obligation to, he's supposed to be faithful to the laws of the United States and the Constitution of the United States, and making a mistake is not what lands you in a criminal prosecution," he continued, noting that Trump was accused of interfering with "the certification of the next president."
Alito said he didn't want to argue the specifics of Trump's case.
"It's difficult to think of a more critical function than the certification of who won the election," Dreeben observed.
"You know, I'm not, as I said, I'm not discussing the particular facts of this case, but it applies to any fraud that interferes seriously with any government operation, right?"
"So what the government needs to show is an intent to impede, interfere, or defeat a lawful government function by deception," Dreeben explained. "These 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 Two duties and, particularly in a case like this one."