An occupational hazard of having argued cases in court as a lawyer is that I can’t listen to oral arguments without second-guessing the advocates in real time — even lawyers who are typically very good at what they do. I’ve seen some really bad lawyering in my time, as well as good lawyers who were put in impossible positions by their clients. But I’m not sure I’ve ever seen anything as blinkered and insane for no good reason as Michael Dreeben’s approach to the Supreme Court Thursday morning, arguing on behalf of special counsel Jack Smith in Trump v. United States.
This was the last Supreme Court argument of the term, involving Trump’s claim of “ABSOLUTE IMMUNITY” from prosecution. The appeal arises from Smith’s indictment of Trump in federal court in D.C., which seeks by creative lawyering to federally criminalize Trump’s effort to overturn the 2020 election and hold him criminally responsible for January 6. I’ll walk through the stakes, the strategies, and the arguments of Trump’s lawyer below. In a second installment, I’ll cover Dreeben’s bizarrely ill-considered performance.
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