Supreme Court Justice Sonia Sotomayor, left, exchanges words with President Donald Trump, right, on Feb. 28,. 2017, when Trump addressed a joint session of Congress in Washington, D.C. (Alex Wong/Getty Images)
It was a profound exchange.
On Thursday, as justices of the U.S. Supreme Court heard extensive oral arguments over whether Donald Trump, as a former president, is totally immune from criminal prosecution for actions taken while he was in office, it began with a series of questions to special counsel attorney Michael Dreeben from Justice Samuel Alito.
Alito, more than an hour into proceedings, started to press Dreeben about whether the prosecution of a president would undermine the stability of a country’s governance. It would seem easily agreeable, the justice argued, that a “stable, democratic society” required a defeated candidate to leave office peacefully if he lost an election.
“Even a close one,” Alito said. “Even a hotly contested one.”
Dreeben easily agreed but when Alito asked what may change if that same outgoing incumbent realized he couldn’t head off into “peaceful retirement” after a defeat but “may be criminally prosecuted by a bitter political opponent,” would that not lead the country into a destructive cycle of destabilizing democracy, too?
For the special counsel’s attorney, the reasoning was “exactly the opposite.”
Mechanisms already exist to contest elections that are both legal and far more appropriate. Dreeben took the window to remind the court that Trump lost every lawsuit he raised to challenge the 2020 election, save for one and that outcome wasn’t “determinative,” he said.
Alito’s argument appeared to strike a solemn but dissonant chord in Justice Sonia Sotomayor after the back-and-forth with Dreeben.
Turning to Dreeben, the justice asked if the “stable democracy society” required the “good faith of its public officials” and that “good faith” would assume those officials would loyally follow the laws of the United States.
“Correct,” Dreeben said.
But putting that ideal situation aside for a moment and considering the real world, Sotomayor remarked that “there is no fail-safe system of government.”
“Meaning, we have a judicial system that has layers and layers and layers of protection for accused defendants in the hopes that the innocent will go free,” she said. “We fail routinely.”
The justice continued:
But we succeed, more often than not, in the vast majority of cases and the innocent do go free. Sometimes they don’t and we have some post-conviction remedies for that. But we still fail, and we’ve executed innocent people.
Having said that, Justice Alito went through step by step all of the mechanisms that could potentially fail.
In the end, if it fails completely, it’s because we’ve destroyed democracy on our own, isn’t it?
Dreeben argued that the framers of the Constitution designed the separation of powers to avoid — or, at minimum, limit — the abuses of a democratic system.
“The ultimate check is the goodwill and faith in democracy and the crimes that are alleged in this case are the antithesis of democracy,” he said.
Trump faces four felony charges in Washington, D.C., connected to his alleged effort to overturn the results of the 2020 election. He has pleaded not guilty to all charges.
Separate of this exchange on Thursday, there are many other notable moments at arguments including Justice Neal Gorsuch dreading the idea of having to face the issue of whether a president can issue a self-pardon and Justice Amy Coney Barrett asking a Trump lawyer if he conceded that private acts are not protected.
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