Biden’s Department of Justice (DOJ) argued Thursday before the Supreme Court that droning American citizens is permissible because Obama’s DOJ said so, whereas questioning election results isn’t OK because the government also says so.
The Supreme Court heard arguments on the scope of presidential immunity after special counsel Jack Smith alleged that former President Donald Trump should be tossed in jail for questioning the administration of the 2020 election.
Justice Brett Kavanaugh posed a series of hypotheticals to DOJ attorney Michael Dreeben about the scope of presidential authority, asking whether Gerald Ford’s pardon of Richard Nixon in 1976 could have been investigated for obstruction of justice “on the theory that [Ford was] interfering with the investigation of Richard Nixon.”
Dreeben suggested that particular case would fall under “presidential responsibilities that Congress cannot regulate.”
“How about President Obama’s drone strikes?” Kavanaugh asked.
“So the Office of Legal Counsel looked at this very carefully and determined that, number one, the federal murder statute does apply to the executive branch,” Dreeben said. “The president wasn’t personally carrying out the strike, but the aiding and abetting laws are broad, and it determined that a public authority exception that’s built into statutes and that applied particularly to the murder statute, because it talks about unlawful killing, did not apply to the drone strike.”
“So this is actually the way that the system should function. The Department of Justice takes criminal law very seriously,” Dreeben continued. “It runs it through the analysis very carefully with established principles. It documents them. It explains them. And then the president can go forward in accordance with it. And there is no risk of prosecution for that course of activity.”
In other words, Obama could not be charged for his use of more than 560 drone strikes that murdered somewhere between 384 and 807 civilians because his own DOJ cleared him to do so.
Obama’s Attorney General Eric Holder admitted to Congress that at least four Americans were murdered by the drone strikes. Three of the four were “not specifically targeted.”
The other conservative justices expressed skepticism about the lack of presidential immunity throughout oral arguments, with Justice Samuel Alito saying a president would be in a “peculiarly precarious position” if he had to worry about being indicted for actions taken while in office.
Trump’s lawyer, D. John Sauer, argued that “without presidential immunity from criminal prosecution, there can be no presidency as we know it.”
“For 234 years of American history, no president was ever prosecuted for his official acts,” Sauer argued. “If a president can be charged, put on trial and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president’s decision-making precisely when bold and fearless action is most needed.”
Brianna Lyman is an elections correspondent at The Federalist.
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