The suggestion, during oral arguments before the Supreme Court in President Trump’s January 6 case, that advice of counsel can immunize a president from criminal prosecution could prove a productive one for the 45th president. 

The question came from Justice Samuel Alito, during a pu pu platter-esque sequence of inquiries directed at the advocate, Michael Dreeben, representing the Department of Justice in Mr. Smith’s prosecution of Mr. Trump. The justice wanted to know “if the president gets advice from the attorney general that something is lawful, is that an absolute defense?”

Mr. Trump’s position is that a former president is immune from criminal prosecution for any official acts, broadly defined. Mr. Smith takes the stance that there is no such immunity, save for “core” presidential functions like the pardon power. Justice Alito was driving at something more common — the defense that a criminal defendant acted with the blessing of his attorney. 

Mr. Dreeben allowed that such a defense, if proven, would be “absolute” — the same kind of ironclad protection sought by Mr. Trump. In this case, such an advice of counsel defense would go by the name of “entrapment by estoppel,” which Mr. Dreeben calls a “due process doctrine” that ordains that if “an authorized government representative tells you that what you are about to do is lawful, it would be a root violation of due process to prosecute.” 

Advice of counsel defenses can be potent paths to demonstrating good faith, but they also require the accused to waive attorney-client privilege. Estoppel by entrapment, though, is no garden variety defense. The Department of Justice’s own manual describes how it is activated when a “government official commits an error and, in reliance thereon, the defendant thereby violates the law.”

Justice Alito appeared nonplussed by Mr. Dreeben’s invocation of estoppel by entrapment. The justice asked whether it would give “presidents an incentive to be sure to pick an attorney general who can — who will reliably tell the president that it is lawful to do whatever the president wants to do.” Such a rubber stamp could double as a shield against prosecution.

It was a strange role reversal, with one of the high court’s most stalwart defenders of presidential power pushing the man defending the first-ever prosecution of a president on whether his argument was too generous in respect of presidential immunity. Mr. Dreeben responded that the “constitutional structure protects against that risk. The president nominates the attorney general and the Senate provides advice and consent.” 

One former Department of Justice official, James Burnham, offers a withering assessment of this position, writing in the Washington Post that “because the attorney general wields delegated presidential power, it makes no sense for the attorney general to have independent authority to immunize the president.” He reckons it is a “constitutional misfire” that could prove effective in defending Mr. Trump, but could inflict damage on the office of the presidency.

Mr. Burnham counts Mr. Dreeben’s concession as “another strike against special counsels, who are too quick to elevate their own narrow prosecutorial interests above those of the executive branch they serve.” Mr. Dreeben, though, was clear on that at court, when he was asked another heater of a question, also by Justice Alito — does the president have the power to self-pardon? 

Mr. Dreeben responded, “I don’t believe the Department of Justice has taken a position,” and was then pushed by Justice Alito: “Are you speaking in your capacity solely as a member of the Special Counsel’s team or are you speaking on behalf of the Justice Department which has special institutional responsibilities?” The lawyer responded, “I am speaking on behalf of the Justice Department. We’re representing the United States.”

The possibility that the Biden administration has now conceded that Mr. Trump — or another president —  could secure immunity by citing entrapment by estoppel could send the 45th president’s attorneys back to the appellate precedents. He could face several challenges, though, to mounting such a case in court. First, this species of estoppel is meant to protect a private citizen from being misled by the government, not to protect the highest office in the land. 

Second, it appears that in his efforts to overturn the results of the 2020 election, Mr. Trump relied not only on government lawyers like Jeffrey Clark but also on private attorneys like John Eastman and Sidney Powell. Their counsel would not be covered by this estoppel, though it would be eligible for attorney client privilege. On that head, in any event, Mr. Trump would be required to show that such advice was not in furtherance of a crime.