You don’t win an oral argument by painting a picture of reality that the judges don’t recognize. It’s an even worse idea to tell them to just blindly trust the judgments of others in deciding what the law is. That’s what government lawyer Michael Dreeben tried on Thursday in the Supreme Court argument over presidential immunity in Trump v. United States. Dreeben, a veteran advocate who has made more than 100 Supreme Court arguments, unaccountably acted as if he’d forgotten that he was arguing before a Court that believes in the rule of law — not the rule of lawyers.
In my first installment on the oral argument, I covered the argument by John Sauer, the lawyer for Donald Trump, and the stakes in the argument, including the fact that Sauer was playing largely for delay and Dreeben was fighting for anything that could get the case to trial before the election. Andy McCarthy has also covered what Dreeben’s argument shows us about the involvement of Joe Biden and his Justice Department in Jack Smith’s case. Let’s focus here on Dreeben’s strategy for briefing and arguing this case and why it was so perverse. I’ll leave for another day my own thoughts on how this case should be decided.
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