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.

As the questioning of Trump's attorney continues, Justice Elena Kagan noted that the framers of the Constitution consciously did not put in an explicit presidential immunity clause.

"They didn't provide immunity to the president," she told lawyer John Sauer. "And you know, not so surprising, they were reacting to a monarch who claimed to be against the law. Wasn't the whole point that the president was not a monarch and the president was not supposed to be above the law?"

In response, Sauer argued that the framers did put in an immunity clause "in a sense" with the executive vesting clause and that they adopted impeachment as a "structural check," which is a major part of Trump's defense against his federal charges.

"They did discuss and consider what would be the checks on the presidency and they did not say we would have criminal prosecution," Sauer said. "Everybody cried out against that as unconstitutional."

Justice Samuel Alito has multiple times over the course of questioning sounded sympathetic toward Trump's positions.

He also seemed to raise concerns about former presidents suffering the burden of having to go through a trial if they are criminally charged.

"That may involve great expense, and it may take up a lot of time, and during the trial the former president may be unable to engage in other activities that the former president would want to engage in, and then the outcome is dependent on the jury, the instructions to the jury and how the jury returns a verdict, and then it has to be taken up on appeal," Alito said at one point.

In his final question to government attorney Michael Dreeben, Alito seemed to suggest that Trump's prosecution could serve to incentivize future presidents to try and unlawfully remain in office in order to avoid prosecution by their successors.

"Now, if an incumbent who loses a close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement -- but that the president may be criminally prosecuted by a bitter political opponent. Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?" Alito asked.

"I think it is exactly the opposite, Justice Alito," Dreeben replied, noting Trump and his allies filed dozens of lawful challenges to the results of the election and lost.

"There is an appropriate way to challenge things through the courts with evidence," Dreeben said. "If you lose, you accept the results, that has been the nation's experience, I think the court is well familiar with that."