In Trump hearing, SCOTUS majority suggests presidents may have some criminal immunity

Asked by Justice Clarence Thomas why previous presidents were not prosecuted for controversial actions, prosecutor Michael Dreeben said "this is a central question."

"The reason why there have not been prior criminal prosecutions is that there were not crimes," he said.

He said there are "layers of safeguards" that ensure that former presidents do not have to "lightly assume criminal liability for any of their official acts."

After about an hour of questioning, Trump's attorney concluded his presentation before the court and Department of Justice attorney Michael Dreeben, representing Smith's team, began his argument with a short opening statement followed by what is expected to be approximately an hour of facing questions.

Dreeben called Trump's immunity claim a "novel theory [that] would immunize former presidents for criminal liability for bribery, treason, sedition, murder and, here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power."

"Such presidential immunity has no foundation in the Constitution," Dreeben said. "The framers knew too well the dangers of a king who could do no wrong."

-ABC News' Adam Carlson

Justice Elena Kagan and Amy Coney Barrett raised the hypothetical of a potential presidential coup with Trump's attorney, who said that under their theory of immunity, ordering a coup could be considered an official act.

John Sauer maintained that impeachment and conviction are needed before a criminal prosecution in the hypothetical case of a coup raised by the justices.

And even then, Sauer said there would have to be a criminal statute expressly referencing the president, prompting an incredulous response from Barrett, who appeared to express a concern that Suer's argument was paradoxical.

"There would have to be a statute that made a clear statement that Congress purported to regulate the president's conduct," he said.

Justice Ketanji Brown Jackson said she was worried that granting Trump's position for presidential immunity would "embolden" a president to act criminally "with abandon."

"If someone with those kinds of powers, the most powerful person in the world, with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes, I'm trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country. ... I worry that we would have a worse problem than the problem of the president feeling constrained to following the law while he's in office," she said.

John Sauer responded by suggesting that history has shown that this hasn't happened so far. “I respectfully disagree with that because the regime you described is the regime we operated under for 234 years," he said.