Michael Dreeben, a lawyer for special counsel Jack Smith’s team, argued on Thursday before the Supreme Court that the reason past presidents have not faced prior criminal prosecutions is that they did not commit crimes.

Dreeben was responding to questions from Justice Clarence Thomas, who asked if the Department of Justice was arguing that the president has no immunity, and cited past covert government operations like Operation Mongoose in Cuba.

“What [Trump] is asking for is a broad blanket immunity that would protect the president, a former president, from any criminal exposure, absent impeachment and conviction, which has never happened in our history, and we submit that is not necessary in order to assure that the president can perform all of the important tasks that the Constitution reposes in him,” Dreeben said about what they see as the key distinction.

Dreeben was also questioned by Chief Justice John Roberts about the Court of Appeals decision that stated that “a former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws,” a sentiment that Roberts expressed concern about.

The attorney for the Justice Department noted that there are “layered safeguards” to prevent politically driven prosecutions and the impact on presidential conduct.

“We are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith for political animus without adequate evidence,” Dreeben said.

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