U.S. Supreme Court Justice Samuel Alito at Donald Trump’s immunity arguments hearing on Thursday questioned whether FDR would have been prosecuted for the mass incarceration of Japanese Americans in camps, which is viewed as an official presidential act.
Discussing previous presidents’ actions that could have been charged with a federal crime without immunity, the conservative justice asked Michael Dreeben, the legal counsel for special counsel Jack Smith, how that would have applied to FDR’s decision.
“What about President Franklin D. Roosevelt’s decision to intern Japanese Americans during World War II? Wouldn’t that have been charged?” Alito asked Dreeben.
“Today? Yes, given this court’s decision in Trump vs. … Hawaii, excuse me, where the court said Korematsu is overruled,” Dreeben said referring to SCOTUS’ 1944 ruling that upheld the camps.
In arguing that he is immune from criminal prosecution in his federal criminal cases, such as the election interference case, Trump has claimed that his efforts to overturn his defeat were official parts of his role as president — and therefore, he cannot be charged since the U.S. Senate didn’t convict him in his impeachment trial. If justices end up ruling in his favor — which is viewed as unlikely — his federal criminal cases would end.
But it’s not clear if justices will come to a quick ruling: Several conservative justices Thursday questioned what the future consequences could be if presidents don’t have criminal immunity, and suggested that further proceedings are needed to determine which of Trump’s actions are private actions versus official acts. If that were to happen, or if the justices don’t quickly issue a ruling, it is less likely that the federal election interference trial against Trump, which is currently frozen, would reach a verdict before Election Day in November.
