BREAKING NEWS: The Supreme Court Hears Oral Arguments In Trump Immunity Claim In 2020 Election Case

Mr. Chief Justice, and with the permission of the

court

, without presidential

immunity

from criminal prosecution there can be no presidency as we know it. For 234 years of American history, no president was prosecuted for his official acts. The drafters of our constitution considered a energetic executive It is essential to guarantee freedom if a president can be impeached, tried and imprisoned for his most controversial decisions as soon as he leaves office. That looming threat will distort the president's decision-making precisely when bold, courageous action is most needed. Every current president faces de facto blackmail and extortion from his political rivals while still in office, the implications of the Court's decision extend far beyond the facts of this

case

, could President George W.

Bush been sent to prison for obstructing an official proceeding or allegedly lying? to Congress to induce war in Iraq, could President Obama be charged with murder for killing American citizens abroad in a drone strike? Could President Biden one day be accused of illegally inducing immigrants to enter the country illegally because of his border policies? the answer to all of these questions is no Prosecuting the president for his official acts is an innovation with no roots in history or tradition and incompatible with our constitutional structure the original meaning of the Executive Grant Clause the understanding and intent of the drafter a tradition uninterrupted history spanning 200 years and political considerations rooted in the separation of powers, the entire Council against.

I welcome the Court's questions on your last point. Could you be more precise as to the source of this

immunity

? The source of the immunity is based primarily on the Executive Grant Clause of Article 2, Section One, and how does that happen, uh, that the source of this, Justice Thomas, I think is as you described in your separate opinion that Catovsky , for example, that the Executive Grant Clause does not include only the executive powers explicitly stated in it, but are all the powers that were originally there? understood to be included in it and Marble v. Madison itself provides strong evidence of this type of immunity, a broad principle of immunity that protects the official acts of the president from scrutiny, sitting squarely in the trial, so to speak, of Article Three

court

s that matches the original understanding of the executive, how would we determine exactly what is an official law?

I said, I point the court to two

case

s for that, obviously, Fitzgerald v. Nixon is the best guidance the court gave when the court adopted the outer perimeter test and this. The court did an analysis that is very instructive here, where they looked at the level of specificity at which the acts are described in that case, a civil case, here would be the indictment, what if you have, let's say, the official law is the appointment of ambassadors? and the President appoints a particular individual for a country, but it is in exchange for a bribe, someone says: I will give you a million dollars if I appoint an ambassador to any country.

How do you analyze that? I think that would come into this Court's debate in Brewster, where the Court held with respect to legislative acts that bribery is not an official act, which is also consistent with the court's common law background, so the form in which this court and Brewster cut off the Joint was to say accepting the bribe and agreeing to have sexual relations. bribery are not official acts, that is private conduct, an appointment would not essentially be an unrestricted power of this court that Congress could not directly regulate, not accepting a bribe is not an official act, but appointing an ambassador is certainly within of official powers. responsibilities of the president, so how could his official laws or the border limits of official laws come into play, um, uh, when it's going to be official, assuming the president is innocent, but the whole question is whether they're going to find? innocent or guilty, again, I think Brewster and Johnson address that very persuasively at least in a slightly different context.

Brewster and Johnson say impeachment must be removed from all immune official acts, so it must be determined what is official and what is not. official, you eliminated the official, you say, okay, we are prosecuting because you accepted a million dollars, they are supposed to say, not say what it is for, because what it is, in part, is within the official duties of the president, uh , there must be, we would say, independent. source of evidence for that and note that this impeachment concerns what this court has described as the unrestricted powers of the president, so the premise The logical premise of this impeachment is that Congress, by passing vague and general criminal statutes , has sought to directly regulate the rights of the president. exercise of things like the exercise of the power of appointment and removal, things like his ability to speak directly to the American public, central exercise of his authority under the Recommendations Clause to recommend to members of Congress such measures as he deems necessary and expedient to that you have an accusation in this case that goes right to the heart of the president's powers, that alleges a whole series of official acts and tries to tie them together by saying that there is a private objective or a private purpose in that case and that is a situation that Of course, it could be argued in virtually any impeachment council, it can be argued, but it must be shown that it is a concept that has long been considered appropriate in the law, that there are some things that are so fundamentally bad that they must be protected. now. think and your answer uh below I'm going to give you the opportunity to say if you stay with that if the president decides that his rival is a corrupt person and orders the army or orders someone to assassinate him it is that within his official acts for which he can get immunity would depend on the hypothetical, but we can see that it could very well be an official act and why, because he is doing it for personal reasons, he is not doing it like President Obama supposedly did.

It's to protect the country from a terrorist, he's doing it for personal gain and that's not the nature of the accusations here that he's not doing it to fulfill an official responsibility, he's doing it for personal gain. I agree with that characterization. of the accusation and that confirms the immunity because the characterization is that there are a series of official acts that were done for a UN because the immunity says that even if you did it for personal benefit we will not hold you responsible, what do you do? How can that be? an extremely strong doctrine in the jurisprudence of this Court and in cases like Fitzgerald, well, we return to Justice Thomas' question, which was where does that come from?

There are miks here who tell us that the founders actually talked about whether to grant immunity to the president and in fact, they had had state constitutions that granted some criminal immunity to governors and yet they did not accept it. Instead, they passed an impeachment clause that basically says the president can't be removed from office except through a Senate trial, but he can be impeached afterward or criminally liable. We would be creating a situation where we would say this is what you are asking us to say, that a president has the right not to make a mistake, but more than that, a prepresident has the right to obtain total personal benefit to use the attributes of his charge, that's what you're trying to get us to maintain without facing criminal liability, your honor, I would say three things in response to that, first, the doctrine that immunity is not based on allegedly inadequate motivation, our purpose is something that this court has reaffirmed at least nine or ten, that's absolute immunity, but qualified immunity does say that any action you take must be within what a reasonable person would do.

It is difficult to think that creating false documents, presenting false documents, ordering the murder of AAL, accepting a bribe and so many other laws that could be broken for personal gain, that anyone would say it would be reasonable for a president or any public official to do that, Your Honor , since this court said very persuasively in the Fitzgerald case that the allegation that this particular act was done for an unlawful purpose or was illegal could be made in all cases and, therefore, if that were the doctrine of that the allegation of improper purpose is what deprives objective acts of their immunity, then they would not have the right to purchase and that is reflected in many of the other court cases.

It is not the job of improper motive, at least in the context of absolute immunity, to tell us what official acts are. acts and what not, I mean, I had understood that even in the ab, first of all, what you ask for is absolute immunity, isn't that the main position? That is his position: he wants the same type of doctrine that we have applied in other contexts. when we say that an official has absolute immunity, um and I understand that when we say that what we mean is that his official acts are correct, yes, we are fine, so any official act then in that world the true decision making from the point of view of the court is whether or not something is an official act or is not correct eh, that is an important determination of course.

I mean, that is the determination in the world of absolute immunity because if you determine that it is an official act then the principle is that you get immunity correct, that is correct in all. Well, my question, and I think the Chief Justice may have asked this at the beginning, is how do you determine what or maybe Justice Thomas, how do you determine what is an official act and when we talk about the types of scenarios that the Judge Sodor mentioned, you could say that when the president is using the attributes of his office for personal gain, then he is not actually acting officially, even if the doctrine were absolute immunity, so what is said about those two things in response to that first one?

To the last point, in all cases it could be argued that this was actually motivated by an inappropriate private purpose. No, I understand, but, but, it would have to be done. I'm just trying to evaluate even if we had the doctrine of absolute immunity that same accusation and the facts related to it would be presented because the person would be arguing that he was not acting in his official capacity, he was not doing something official, he was doing it personally, right, I agree, age, the point or I'm not sure I agree, but the point I would answer is in Fitzgerald v.

Nixon, this court emphasized that that would result in an intrusive discussion or determination of the president's personal motives. for each official act and again This is not only in the case of the presidency. Can I ask you another quick question before my colleagues take over this? At the beginning of his analysis, when he was giving his opening statements, he was talking about that. You suggested that the lack of immunity and the possibility of prosecution in the presidential context is something of an innovation and I understood that it was the status quo. I mean, I understood that every president since the beginning of time has essentially understood that there was a threat of prosecution if only because the Constitution suggests that they can be prosecuted after impeachment. um, you know, the general counsel's office has always said that presidents are gracious in the face of a threat of prosecution and they have continued to function and do so. their jobs and do all the things that presidents do, so it seems to me that they are now calling for a change in what the law is related to immunity.

I would quote what Benjamin Franklin said at the Constitutional Convention, which I think best reflects the founders. original understanding and intent here, which is in the Constitutional Convention. Benjamin Franklin said that history provides just one example of a chief justice who was subject to a criminal process of public justice and everyone cried out against it because I don't understand it, but since Benjamin Franklin everyone has thought, including the president that They have held the position that they were assuming this position subject to possible criminal proceedings. No, I don't see the opposite. I see that all the evidence goes in the opposite direction.

Marbury v. Madison Mississippi v. Johnson discussed this broad principle of immunity that, of course, What happened to the pardon? What happened to the pardon for President Nixon? I think if everyone thought presidents couldn't be impeached, then what was that? Well, he was under investigation for public and private conduct at the time when the official acts and private conduct I think everyone has correctly understood that the president, since, like the incident of President Grant when he wrote the carriage, everyone has understood that the president could be prosecuted by the council in that regard, there seems to be some common ground between you and your colleague in the other. side that no one is above the law and that thepresident cannot be prosecuted after he leaves office for his private conduct, that's right, we agree with that and then the question is, as we've been exploring here today, a little bit about how to separate the private conduct from the official one that may or may not enjoy some immunity and I'm sure we'll spend a lot of time exploring that, but the DC circuit at Blazing Game, the head judge, joined the express panel. some views on how to segregate private conduct by which no man is above the law from official acts do you have any idea about the test they came up with there?

Yes, we think broadly about that test, especially if it is understood through the lens of the judge. The separate cis opinion is very persuasive evidence, it would be a great source that this court would rely on to draw this line and it emphasizes the breadth of that evidence, it talks about how, uh, actions that are plausibly connected with the official duties of the president are official acts and also emphasizes that if it is a closed case or it appears that there are considerations on the other side that should also be treated as immune, those are the aspects that we would emphasize as potentially guiding the court that left open in that case the possibility of additional procedures and exactly correct trial and that would be a very natural course for this court to take in this place the court can and should reverse the DC Circuit's categorical assertion that there are no official acts, especially when it comes to but you would agree There would be further proceedings required, that's right, there would have to be and I would point the court to Anderson v Kraton where the court said there would be two stages in these further proceedings: either you look at the allegation itself or, in that case, it was you know a complaint, but look at the charging document itself and see if on the face of it these are allegations of official acts and if not or cannot be determined, then there would be a factual procedure and all that under Mitchell against the provision. and so on would have to occur before any other proceedings in the district Mr.

Go ahead, Mr. Sarah, you began by explaining why you believe immunity from criminal prosecution is essential to the proper functioning of the presidency, but my question is whether the The strong form of immunity that you advocate is actually necessary to achieve that result, so, to take a possible alternative, suppose that the rule were that a former president cannot be prosecuted for official acts unless he cannot imagine a plausible justification for what the president did given the history and legal precedents and the information that was provided to the president at the time the law was adopted. Would it be sufficient or if it is insufficient, why would it be insufficient?

It could be a much better rule than the one that emerged. From the lower courts here we think that it would be insufficient because again that long line of the CAS is talking about using the president's motives and the intrusive type of consideration of the president's motives as a transformation of acts into official and unofficial ones would come into play. and of course, once you can make that accusation, suddenly you open the door, you no longer have a bright and clear rule per se, you have a determination in each case, well, what if it weren't like that?

What if it didn't involve? any subjective element were purely objective, the various relevant factors would be objectively looked at, which sounds a lot like a hot game to me, and especially the view through Judge Cass's lens is a separate opinion and may not be any different than what we are proposing. to court today, well, the fiery game had to do with the difference between official conduct and private conduct, right, that's right. Sorry, I understood the court was asking no, this would apply and it's just a possibility. I don't know if it's a good idea or a bad idea or whether it can be derived from the structure of the Constitution or the vesting clause or any other source, but this would apply purely objectively for purely objective reasons when the president invokes an official power by taking the action that Is that the problem?

Yeah, I think the reason I think about the game Blazing is because it speaks to a context-specific objective determination to distinguish what is official conduct and what is purely private and again in a strong degree of difference from what I feel. If I understand Judge Leo, he is not suggesting that he is suggesting that even if it is an official act, if it still grants immunity if that act is not plausibly considered within the scope of the law, he can correct me if I am wrong. no, that was the question that I think would be a superior rule to the categorical denial that arose in the trial court here.

I think it would be. I'm not quite sure why you used the word plausible because that seems to deny um it could also give absolute if you say plausible because anyone could argue plausibility we don't even require plausible we require reasonable in qualified immunity so I mean one could argue that no it is plausibly legal to order SEAL Team Six and I don't want to slander SEAL Team Six because they are not serious, they are honorable, they are honorable officers and they are bound by the uniform code of military justice not to obey illegal orders, but no, I think a .

He could say that it is not plausible that this is legal, that this action is legal, and I am sure that he thought: I have thought of many hypotheses. I'm sure you've thought of many scenarios in which a president might say, "I'm using an official power, and yet the president is using it in an absolutely outrageous way." If we make an objective determination, that may well be an interesting approach. to take this, so apply it to the allegations here. What is plausible about the president helping and creating a fraudulent list of elect

oral

candidates, assuming you accept the facts of the complaint on their face. would it be their right to absolutely RoR?

We have the historic president, SED, in the lower courts of President Grant sending federal troops to Louisiana and Mississippi in 1876 to make sure that the Republican electors were certified in those two cases that gave the

election

. to Ruther to be Hayes. The idea that is completely implausible, I think you simply cannot support based on the appearance of this accusation or even knowing that the Slate is false knowing that the Slate is false that they were not actually chosen that they were not actually chosen. They were not certified by the state. He knows all those things that the accusation itself alleges.

I dispute that characterization. The accusation attaches the word label to the so-called fraudulent elected officials, correcting the word fraudulent, but that is a complete error in the view of the accusation. it appears that there was no deception as to who had emerged from the relevant state conventions and this was being done as an alternative. But I want to address a higher level point, a fundamental point, which is that, as Judge Alito's question indicated, there are a whole series of structural controls in addition to criminal prosecution that are designed to deter these kinds of outlandish scenarios that are extraordinarily obvious. illegal things and that has been seen in the opinions of this Court from at least where do you think the CC circuit went wrong in determining what was official versus what is personal.

I read the opinion below in this particular case as taking a categorical view, it doesn't matter the logic of your opinion because there is no immunity for official acts and therefore, uh, you know, that's the end of the story. I really don't think they were wrong to open the game in the Civilian Context when they engage in the same determination regarding what is official and what is unofficial there, we agree with most of what that opinion said and for some official acts that are not within the exclusive power of Article 2, okay, then it's official. acts but is not within the exclusive power of Article 2, even for those, I suppose you would think that a clear statement must be made, a clear statement is required in the statute covering the president if the official acts of the president are to be criminalized , it is absolutely obvious that the issue Do you know that you know it at the highest possible level when it comes to unrestricted powers like in this accusation?

Well I guess exclusive powers are walled off and can't be prosecuted before there are plenty of official powers that aren't. exclusive of the president under his Article 2 Authority, uh, but for those that I understood you to say, at a minimum, there would have to be a clear statement in the statute that references the president so that the president is informed and can behave. accordingly, that is absolutely correct and would be consistent with both Franklin and the public citizen in cases along with a number of other clear statements. I can continue? Go ahead, go ahead, for you to admit that private acts do not get immunity, we do it right, so in the Special Counsel's brief on pages 46 and 47, we are urged even if we were to assume that there was some type of immunity for the official X, that there were sufficient private acts in the prosecution for the trial to continue. the case will go back and the trial will begin immediately and I want to know if you agree or disagree with the characterization of these acts as private.

One petitioner turned to private counsel and was willing to spread deliberately false allegations of voter fraud to spearhead his challenges. to the private

election

results like Alle I mean, we dispute the allegation but that sounds private to me it sounds private the petitioner conspired with another private attorney which caused the submission to the court of a verification signed by the petitioner containing false accusations to support a challenge that also sounds private three private actors two attorneys including those mentioned above and a political consultant helped implement a scheme to submit fraudulent lists of presidential electors to obstruct the certification procedure and the petitioner and a co-conspirator attorney led that effort uh what you read quickly, I think it's private I don't want those acts not to discuss them, they were private and I wouldn't raise a

claim

that they were official, as we would characterize it, we would say, your honor, if I may, we would say it, as official as things like meeting with the Department of Justice to deliberate on who will be the acting Attorney General of the United States communicate with the American public communicate with Congress on matters of enormous concern thank you uh thank you Council and what the consequence is in terms of moving forward with your recognition that those are private acts rather than official acts if you look at the accusation here there are a lot of acts that we think are clearly official there may be accusations that relate primarily to what the government has described here as a private objective or private purpose and the court should send the remand or direct itself, but the remand is for a Brewster-like determination, which is what is official and what is private; official stuff must be completely removed from the indictment before the case can proceed.

Go ahead and there has to be a determination at least on remand of what is official, a two-stage determination of what is official and what is private, well, if you eliminated the official part of the accusation, how do you mean that Is it like a stool with only one leg? I mean, giving someone money is not a bribe unless you get something in return and if what you get in return is to become an ambassador for a particular country, hey, that's official, the appointment is within the president's prerogatives. The unofficial part is that I'm going. to get a million dollars for it, so if you say you have to delete the official part, how does that go on?

This particular D we say that virtually all excessive behavior is official, we don't think it can go forward. I mean there could be a case where that was the case, but if you look even at the government's brief in this case, it breaks down the accusation into things that, apart from the voters' accusations, really aren't, no. They have questioned whether they are official acts, but what they do is say, well, we put everything together by characterizing it as fact and these are the accusations that the court just referred to with an inappropriate private purpose or a private purpose again, those are their words and they just collide, you know, he said against.

The jurisprudence of this Court and does not take into account when immunity determinations are inappropriate motivation or purpose thank you Judge Thomas uh Sr s uh when evaluating the official acts of a president, do you differentiate between the president acting as president and the president acting as a candidate, yes we do and we don't essentially question the Blazing game's discussion of that, okay, but of course that has to be done by objective determinations, not by looking at what the purpose was of what you did, this is the most important point. Did you, uh uh, in this litigation challenge the appointment of the special counsel, not directly?

We have done so in the Southern District of Florida case and we fully agree with the analysis provided by the Attorney General, Iand Attorney General Mu Casey, and he points to a very important point here because one of his

arguments

is, of course, that we should have this presumption of regularity that clashes with the reality that we have here extraordinary prosecutorial power exercised by someone who has never been nominated by the president or or confirmed by the Senate at any time, so we agree with that position, we, we had not raised it yet in this case when this case was appealed.

Judge Alo when you say that the official act must be eliminated from the prosecution which in itself would not accomplish much unless the evidence of those official acts were excluded at trial, then what you are saying is that the prosecution should not be allowed The prosecution at trial will prove the official acts as part of the conspiracies that are absolutely alleged and we believe they are just the clear implications of Brewster and Johnson and their discussion is in a very analogous context, thanks J. I'm a little confused by that, um, if you have a plan to defraud or a plan to accept. bribery there is evidence from which this scheme can be inferred and one of them is that the appointment really occurred, it is an official act that you would not erase and that as evidence you would indicate to the jury that there is no responsibility for the real appointment that the responsibility is for accepting the bribery similarly here I don't think the prosecution is charging that the obstruction um occurred solely because of conversations with the justice department, they say you look at all the private acts and you look in the context of some of the public acts and you can infer the private intention of theirs, so I'm not sure I can understand why their problems couldn't be resolved at trial with an instruction if we believe that if the court decided that I'm not even sure how they could do it, but if they decided that some public acts they cannot be the basis of criminal liability I think the best I can say about this is and I think this relates to the Chief Justice's question about a one-legged stool.

Brewster and Johnson in later cases like H housekey verus meaner essentially say this is a pawed stool problem, it will be difficult for some of these prosecutions to proceed and those are the implications of official immunity that is dictated in the Constitution here by the executive override clause. Justice Kagan may continue a bit along the lines of Justice Barrett and ask about some of the prosecution's allegations and whether or not in his opinion there are official laws, then the defendant signed a verification affirming the false allegations of fraud elections made in his name and a lawsuit filed in his name against the governor of the Georgia government, uh, no I don't think we've discussed that that's official.

Sorry, that's not official. The same for the accused named. The chairwoman of the Republican National Committee asked him to gather electors in the selected states. She falsely represented to him that those voters vote. would be used only if the ongoing litigation in one of the states changed the results in favor of the defendant we have taken the position that that is official that is official yes why would it be official because the organization of alternate lists of voters is based on, for example example The historical example of President Grant is something that was done pursuant to precedent and preparatory to the exercise of the power of the central recommendation clause, so when President Trump could not have taken this action alone in the status of candidate , the fact that he could have done it does not prove that he did it in this case and based on the indictments, we believe it is clear that he did not do it, that this was done in an official capacity, the defendant asked the Speaker of the House of Representatives of Arizona to call the legislature into session. hold a hearing based on his

claim

s of election fraud, an absolutely official act for the president.

Communicate with state officials about a matter of enormous federal interest and concern. Trying to defend the integrity of a federal election. Communicate with state officials and. urge them to see what he considers his job, uh uh, under state law and federal law, that is an official act, well, trying to defend the integrity of the elections. I mean, that's the defense, the accusation is that he was trying to overthrow an essentially exactly correct election. in none of the claims about what the purpose is should determine it, it should make a difference as to whether you are immune, that is extremely strong precedent from this court, does it seem strange to you that your understanding of immunity goes so far beyond what that OLC has ever claimed for a former president.

I think the OLC views here strongly support us because every time a congressional statute basically came close to touching the president's prerogatives, they said, "We're going to interpret the statute narrowly to avoid that." That's a different question. I mean, what the OLC has always said is that sitting presidents get immunity, but former presidents don't, now there might be a different argument about whether a statute or whether a statute applies to particular conduct. adequately available against the president, but that is a very different argument than the immunity claim you are making here and which OC has definitely not supported.

No, I don't know if I put it that way. I don't remember an opinion that addresses it directly, but what's most fundamental to us, your honor, is actually the language of cases like Marbury and statements like Benjamin Franklin at the Constitutional Convention, statements by George Washington that talk about the massive risk of factional conflict and how that could destroy the Republic. and erect a new government on the ruins of public liberty, that is what we mainly rely on here. I site the previous opinions because, of course, what you see is a very strong tendency that if there is any statute that can in some way affect the prerogatives of the president. what they adopt they interpret to avoid that, um uh, if a president sells nuclear secrets to a foreign adversary he is so immune, that sounds similar to the bribery example, he probably won't be immune now, if it is structured as an official act, he would have to be challenged. and condemned first before, what does that mean if it is structured as an official act?

Well, I don't know in the hypothetical whether or not that would be an official act. You would probably have to have more details to apply the Blazing game analysis, uh uh. or even the Fitzgerald analysis we've been talking about, what if a president orders the military to stage a coup? I think, as the Chief Justice pointed out earlier, there are a whole series of guidelines against that. so to speak, like the UCMJ, which prohibits the military from pursuing a clearly illegal act if one adopted the Justice test also which would be left out now if one adopts, for example, the Fitzgerald test that we advanced, which could well be an act official and he would have to be As I will say in response to all this type of hypothesis, he has to be charged and convicted before he can be criminally prosecuted, but I emphasize to the court that well, he left, let's say that this president who ordered the military performing the Stage Aoup is no longer.

He was no longer president, he was not accused, he could not be accused, but he ordered the military to carry out a coup d'état and you are saying that it is an official act. I think it would depend on him being immune. I think it would depend on the circumstances. It was an official act. If it were an official act again, it would have to be an imp. What do I mean? It depends on the circumstances he was the president he um uh he is the commander in chief um he talks to his generals all the time and the generals told him I don't want to leave office I want to stage it jaku he is so immune if it is an official act there must be an impeachment and a conviction beforehand because the drafters saw in RI that that type of official law is an official act.

If it is an official act, it is a devil, is it an official act? The way you described it, hypothetical, it could very well be. I just don't know, you'd have to do it again. It is a fact, a context-specific determination. That answer sounds like yes to me. It's as if, according to my proof, it is an official act, but that sounds bad, doesn't it? It certainly sounds very bad and that's why the editors have a whole series of structural controls that have been successful over the last 234 years prevented that kind of extreme horse riding and that's the wisdom of the editors, what they saw as the risk against the What had to be protected was not the notion that the president could escape criminal prosecution for something that you more or less know. very, very unlikely in these unlikely scenarios, they are even much more likely and much more destructive to the Republic.

The risk of factional conflict discussed by George Washing's framers did not include an Immunity Clause in the Constitution. They knew how to do it. There were Immunity Clauses in some state constitutions. They knew how to grant legislative immunity they did not grant immunity to the president and it is not that surprising that they were reacting against a monarch who claimed to be above the law was not the point the president was not a monarch and the president was not supposed to be above the law above the law. I would say two things in response to that immunity.

They did put in an immunity clause in the sense that they put in the executive adjudication clause that was originally understood to have to adopt a broad immunity principle. that was set out in the very broad language of Marber v. Madison and they also discussed and considered what the checks on the presidency would be and they didn't say oh, we need to have a criminal process right there at the Constitutional Convention. Benjamin Franken says that I don't have that that is not an option everyone cried out against the structural control as unconstitutional they were adopting his impeachment and it is very clear about it on pages 64 to 69 of the second volume of faren thank you justice Gorsuch has just returned to the hypothetical chief justice about the ambassador's sale and bribery.

Congress has a statute that specifically names the president and says he can be criminally prosecuted for bribery, presumably after he leaves office. Outside of the core areas that Judge Kavanaugh was talking about when Congress speaks clearly. Couldn't Congress provide a statute like that that would allow all kinds of evidence to be presented to prove the case? I think our position is that it would have to be an unofficial act and purely private conduct for the prosecution to move forward all the time. true, but outside the core areas of the executive branch, if there is a clear declaration from Congress that something is illegal and applies to the president.

I find it difficult to see why in that case perhaps the evidence could come out, yes, as strong as possible. In our view, the case is what you've described as sort of central executive powers, unrestricted powers within the CA law meeting, but again, the holding of, say, Brewster and Johnson that we've been on based does not depend on how Central is a legislative act, it is as if it were an official act that here we would say that basically applies the Fitzgerald v. Nixon outer perimeter test, which does not go into what would happen if presidents were under fear, fear of that their successors would criminally prosecute them for their actions in office, whether they are involved in drone attacks.

All the hypotheses, I am not going to analyze them. It seems to me that one of the incentives that could be created is for presidents to try to pardon themselves, do you have any thoughts on that? That's H. I didn't think about that until the active honor of him. It is certainly an incentive that could be creative. What we think is most important. We have never answered whether a president can do that. um, happily, it has never been presented to us and if the imun doctor remains in place, it will likely remain that way for those same problems, as Fitzgerald very powerfully emphasized, the real concern here is whether there will be bold and fearless actions.

Will the president have to make a controversial decision in which his political opponents will come after him the moment he leaves office? That will unduly deter that president from doing what our constitutional structure requires. he or she, which is a bold and brave action in the face of controversy and perhaps if he feels he must, will forgive himself every four years from now on, but that, as the court noted, would not provide security because the legality That is something that has never been addressed now. One of the checks and balances besides impeachment that you have discussed is subordinate liability.

It doesn't dispute that anyone who follows an illegal order under the president of the United States can be immediately prosecuted, sorry, the court is asking if they could the president gives an illegal order, uh, calling in the troops, all the examples we've heard , all subordinates under him face criminal prosecution, right? That's what Governor Morris said. explicitly in the Constitutional Convention that coagitators could be prosecuted there is an important caveat because of course there would have to be a statute regulating that for them to be prosecuted, we have many statutes on the books ofcriminal law. are packed, but I mean, do you agree that there is a check that is absolutely available and, again, the only caveat I was making is whether that statute was doing what Marber says it can't do, which is go after the subordinates to restrict, say, a central executive function, Franklin's clear statement rule could kick in and that president might not be able to go after that president, so I don't think Congress can say we can't go after the president directly , but we are going to criminalize the way the president speaks before Congress under the exercise of the recommendations clause and therefore we are going to introduce a criminal statute that says that if you provide false information to Congress in carrying out the recommendation of the president grants him powers, he can be impeached immediately, which at least will be a very difficult question, but the fundamental point of drawing that distinction between the president himself and his co-agitators in the words of Governor Morris, the Constitutional Convention is a excellent distinction.

Judge Kavanaugh just get on with the olc opinions question, uh, while he reads. they, and I think I've read them, articulate a clear statement rule as to cases of this Court, uh, to cover official acts and your point, I think, but I just want to emphasize that none of the statutes alleged here or cited here have a clear statement. Covering the president, therefore, meaning that the president cannot be impeached for any official act. Under this, under these statutes, that is absolutely correct, they extend much further. I mean, this is separate from the question of what is official versus what is personal, but for that group that is official, there is no clear disclosure period that is correct and as far as purely private conduct, I don't think it would be invoked. the clear declaration rule, but as far as official acts, these statutes, those charged in the indictment, are very far from intended to be seen by criminals in clear terms, the official acts of the president and then, um, just to clarify this , the president is not above the law, the president is not a king, the founders thought that, um, I think their point in response is that the president is subject to prosecution for all personal acts, just like anyone else American for personal acts, the question is the acts taken in an official capacity are correct and even those, of course, if there was an impeachment and a conviction could be prosecuted in our opinion and we had emphasized a whole series of structural controls in addition to that uh uh uh that deter that guy and have successfully deterred presidential Mises for 234 years, so the source of immunity is not explicit in the con tion, but neither executive privilege is not explicit in the Constitution, but in the United States v.

Nixon, the court unanimously said that the executive power of Article 2 in the Constitution encompassed the executive. privilege and the same principle would presumably apply to executive immunity encompassed within that executive power is understood historically, that is absolutely correct and there is a very revealing passage in the free enterprise fund where this court talked about how there is a letter from James Madis to Thomas Jefferson in the At the time of the founding, when Madison said, hey, the S, the power of impeachment, they didn't expressly take it away, so the 1789 Congress understood that it was left in place, so If the original understanding of the Executive Grant Clause is broad enough to cover it, it would have to be expressly withdrawn, which is the opposite of the presumption that they are advancing here and, finally, I think they have recognized in response to other You ask that some of the acts in the accusation are private and your opinion is that some are official.

Is it your position then that that analysis should be done in the first instance by the D.C. Circuit or the district court, most likely the district court under Anderson's logic? Thank you, Judge Barrett, so Mr. Sour, you have argued that the Impeachment Clause suggests or requires that impeachment be a gateway to criminal prosecution, right, yes, I think that is the clear meaning of the second sentence in the Clause, okay, there are many other people who are subject to impeachment, including me and the nine sitting on this bench. I don't think anyone has ever suggested that impeachment would have to be the gateway to criminal proceedings for any of the many other officials subject to impeachment, so why is the president any different when the Impeachment Clause doesn't? says? opposite suggestion as to the president himself, who is attorney general bour, which was reformed in the OLC opinions on this where attorney general Bor in 1973 regarding the issue of vice president reviewed the historical materials and said that the sequence is mandatory just as for the president, that is the Department of Justice's opinion on the original understanding of the impeachment clause, which is exactly our position, the sequence is mandatory only as to the president, note that the criminal prosecution of a president before impeachment contradicts, in our opinion, the simple language of the Constitution, but also hundreds of years of history and what the Department of Justice admits is the intent of the framer, so we say that that practice, whatever it may be Its validity should not be extended to this novel context where it clashes with constitutional criminal conduct, it is not discovered until after the president left office, so there was no opportunity for impeachment, we say that the drafters assumed the risk of a insufficient enforcement by adopting these very structural controls, as Justice Kia and Morrison v.

Olsen said, the separation of powers prevents us from writing every is wrong, but it does so so that we don't lose freedom, okay? it was for the same conduct for which he was convicted, not charged, he should be convicted that word conviction is there in the Clause, well granted, but you also say that these criminal statutes, unless they explicitly mention the president, do not apply to him, then how? Can he say that he would be subject to prosecution after impeachment and at the same time say that he is exempt from these criminal statutes? Well, there are statutes that recognize that Congress has addressed two or three and they have not done a thorough review.

I think this sounds like all they did was a technical search for president in US Code 18 again under Franklin, that's a very telling indication that the word president is not in the statute, it's not necessarily a magic word requirement, so to speak, but it is more fundamental than that. fundamentally in that you can see that there are statutes, plus much of the impeachment could occur as a result of a private trial, so the Impeachment Clause does a significant job of authorizing the subsequent prosecution of a president there because, if You see, the framers What they are discussing at the Constitutional Convention are primarily concerns about private conduct which, of course, we can see or it is not right, so, to return to Justice Kagan's example of a president ordering a coup, let's imagine who is accused. and convicted of ordering that hit and let us accept, for the sake of argument, his position that this was official conduct.

You're saying that you couldn't be prosecuted for that even after a conviction and impeachment process if there wasn't a statute that expressly referenced the president and made it criminal for the president, there would have to be a statute that made a clear statement that Congress intended to regulate the conduct of the president, okay, thank you, Judge Jackson, so I think I now understand your position better in your discussions with Judge Kavanaugh made it clear that you are saying that for the private acts of a president there is no immunity but for the official acts of the president there is immunity.

His position I agree with that, okay, so one thing that occurs to me is that This kind of difficult line-drawing problem that we're having with all of these hypotheses is whether it's a private act or a public act. That assumption requires it because, of course, if official acts gained absolute immunity, then it would matter that we did so. I don't have to identify which ones are private and which ones are public. Correct, in fact, is the DC circuit approach. No determination needs to be made, but I am doing so to the extent that we are concerned.

How can we know if it is private or public? We have to understand that we only do this because of an underlying assumption that public acts get immunity, so let me explore that assumption. Why is it a question of theory? and I hope that they can do some kind of Zoom so that the president is not required to follow the law when he does his official acts, everyone else, everyone else, there are a lot of people who have very high-powered jobs that make a lot of important decisions and they do so in the context of potential criminal prosecution if they break the law in that capacity and we understand and know for a fact that the president of the United States has the best Lawyers around the world, when he makes a decision, can consult with almost anyone person whether this is criminal or not, then why would we have a situation where we would say that the President should perform official acts without any uh? responsibility to follow the law I respectfully disagree with that characterization, the president absolutely has the responsibility, he is absolutely obligated to follow the law in all his official acts, but the remedy for that is the question: could he be subject to personal vulnerability and send him to prison for making a bad decision after leaving office, but other people who have important jobs and who must follow the law make those determinations in the context of that same type of risk, so what about the president ?

You say it's because the president has to be able to act bravely, you know, make important decisions. I mean, sure, but again, there are a lot of people who have to make life or death decisions and still have to follow the law and if they don't, they could be sent to prison, etc., so I say two things in response to that, both Fitzgerald, that's the kind of inference or reasoning that this court rejected in Fitzgerald, no, but let me just say that Fitzgerald was a civilian. situation where the president was actually in a different position than other people because of the nature of his job, the high-profile nature and the fact that it touches on so many different things when you talk about private liability, you know someone on the Street can sue him, we could see that the president was a little different than the average person when you say he should be immune from civil liability from anyone who wants to sue him, but when we talk about criminal liability, I don't understand how the president is in a different position regarding the need to comply with the law while doing his job than anyone else, he is obliged to comply with the law and what happens if there is no criminal prosecution if there is no threat of criminal prosecution what prevents the president just do what you want, all the structural controls that are identified in Fitzgerald and a whole series of cases in these courts going back to Martin v.

M, for example, congressional oversight of impeachment, public oversight, there's a long series of them, if it's Gerald. addresses this directly in the civil context and we believe that language is natural. Q I'm not sure that's a big deterrent and what I'm guessing is that you're more concerned that you seem to be worried about the president getting cold feet, I think. that we would have a really significant opposite problem if the president wasn't cold, if someone with those kinds of powers, the most powerful person in the world with the most authority, could take office knowing that there would be no potential penalties for committing crimes.

I'm trying to understand what the disincentive is to turning the Oval Office into a U, you know, the headquarters of criminal activity in this country. I don't think there's any allegation of that in this case and what George Washington said that what Benjamin Franklin said is that we consider the prosecution of a chief executive to be something that everyone cried out against and it's unconstitutional and what George Washington said is that we are concerned about conflicts between factions that do not. I'm Al, so let me, let me. Let me put this concern on the table. If the possibility of criminal liability is eliminated, wouldn't there be a significant risk that future presidents would be encouraged to commit crimes with abandon while in office? that we are having this debate because the OLC has said that presidents could be prosecuted.

Presidents since the beginning of time have understood that that is a possibility that could be what has kept this office from becoming the kind of crime center that I'm envisioning, but once we say there is no criminal liability, Mr. President, you can do whatever you want. I worry that we have a problem worse than the problem of the president feeling obligated tofollow the law while in office. Respectfully, I don't agree with that because the regime that you have described is the regime that we have operated under for 234 years, there has not been an expectation based on 234 years of uninterrupted politics, okay, let me ask you another question, let me ask you another question about this clear statement. um line of questioning first of all, I didn't see you argue that next I don't know, I understand you have that set of writings here, but did you argue before the CC circuit anything about a clear statement regarding the statutes? uh, yeah, uh, in our separately filed motion to dismiss based on legal grounds, we argued at length not just this clear statement rule but an entire panel, but that's not the question presented in this case, the question presented in this case arises from your immunity motion, so to make an argument now that you didn't make below, it seems to me that you lost it.

No, I think it's pretty much included within the question presented, especially since the court expanded the question presented from what either party presented. but not the legal interpretation, I mean that argument refers to the law and evasion, you know, with the legal interpretation of constitutional evasion, you asked for immunity, which is a totally different thing. I think they are very closely related logically, the question is whether and to what extent immunity exists and the argument is that immunity at least exists to the extent that it raises a big constitutional question that triggers the clear declaration rule that is really totally circular.

You use that argument to avoid constitutional issues. You are asking us a constitutional question. here, so it doesn't even make sense to talk about a clear statement in the rule the way it has arisen in the context of a question about immunity, but let me ask you this about it. I had one more question. Yes, so what is the argument that the president of the United States, who you say, is bound by the law is not on notice that he has to do his job according to the law, I mean, in the To the extent that the clear statement rule goes into effect, it's about the person not being on notice, so I guess I don't understand why Congress in every criminal statute would have to say and the president is included.

I thought that was the kind of background understanding that if they're enacting a criminal statute of general application, it applies to the president like it applies to everyone else, so what's the clear statement that you would have? In this context, under Franklin and under public citizen rule, Congress has to speak clearly before interfering with the powers of the president and we have here an accusation that seeks to criminalize objective conduct that falls within the heart of central executive authority. Thank you, thank you Council. Mr. Deven, Mr. Chief Justice, and with the permission of the court, this court has never recognized absolute criminal immunity for any petitioning public official;

However, it states that a former president has permanent criminal immunity for his official acts unless he has first been impeached and convicted, the novel Theory would immunize him. former presidents for criminal responsibility for bribery, treason, sedition, murder and here conspiracy to use fraud to overturn the results of an election and perpetuate themselves in power. Such presidential immunity has no basis in the Constitution. The framers knew all too well the dangers of a king who could do nothing wrong, so they devised a system to check abuses of power, especially the use of official power for private gain.

Here the executive branch is enforcing congressional statutes and seeking accountability for petitioners, alleged misuse of official power to subvert democracy, which is a compelling public interest in response Petitioner raises concerns about potential abuses, but legal safeguards in place They provide layers of protection and Article 3 courts provide ultimate control. The existing system is a carefully balanced framework. It protects the President, but not at the high constitutional cost of the general criminal immunity that has been imposed. the understanding of every president from the framework to Watergate and until today this court must preserve it I welcome the questions of the Court uh Mr. dban uh does the president have immunity uh or uh are you saying that there is no immunity, presidential immunity even for official acts?

Yes, Judge Thomas, but I think it is important to put into perspective the position that we offer to the court today. The President, as head of the Article 2 Section, may assert, as applied, Article 2 objections to criminal laws that interfere with an exclusive power held. by the president or that prevent the president from fulfilling the functions assigned to him by the Constitution, which is the constitutional doctrine that currently governs the separation of powers. What the petitioner is asking for is a broad blanket immunity that protects the president, a former president, from any criminal exposure without impeachment. and conviction that has never occurred in our history and we maintain that it is not necessary to ensure that the president can perform all the important tasks that the constitution assigns to him, in the not so distant past, presidents or certain presidents.

I have been involved in several activity coups or professional operations such as Operation Mongoose when I was a teenager and yet there were no prosecutions. Why if what you're saying is correct, it would seem that that would have been ripe for uh, criminal prosecution of someone, so, Judge Thomas, I think this is a central question. The reason there have been no prior criminal prosecutions is because there were no crimes and I want to explain why there are layers of safeguards that ensure that former presidents do not do this. have to lightly assume criminal responsibility for any of their official acts from the beginning there is a principle of legal interpretation that is applicable here arises when there is a serious constitutional question about the application of a criminal statute to the acts of the president it is not and I'm sure we will discuss this that no statute can apply to the president in his official capacity without a designation of the president in it, but there is a principle that if there is a serious constitutional issue, the courts will endeavor to interpret the statute in a way Do not do it. does not apply to the president, other than the president, I think it has been mentioned above, has access to the advice of the attorney general and it would be a due process issue to prosecute a president who received advice from the attorney general that his actions were legal in absence the type of collusion or conspiracy that in itself represented a criminal violation that I don't really see as a realistic option and then if I could say one more thing because you raised the question about the possible death abroad and the position of attorney The lawyer has addressed this very specifically: there is a fundamental principle of criminal law called Public Authority, exception to liability, and it is incorporated into federal law unless Congress takes specific action against it, which, as far as I know , has never done.

In a case where the president sought to engage in foreign activities that would result in the taking of life, OLC did not say that the federal murder statute does not apply, that would be the thrust of my friend's argument about a statement Instead, OLC went through an extensive analysis of why the Public Authority defense would prevent it from being considered a violation of law to pursue a terrorist, for example, the appeals court below whose decision we are Reviewing said quote, a former president can be prosecuted by his official acting because the fact of the accusation means that the former president has allegedly acted in defiance of the laws.

Do you agree with that statement? Well, I think it sounds tautologically true, but I want to emphasize that the obligation of a president is to ensure that the laws are executed faithfully and well. I think it also rings tautologically true and I think it's the clearest statement of the Court's decision, so I'm concerned that, as I read it, it simply says that a former president can be prosecuted because he is being prosecuted. well processed. I wouldn't suggest that's the right approach in this case or it's certainly not the government's approach. An accusation, of course, invokes Federal Criminal Law.

The indictments must be presented to a grand jury that votes on the indictment. Well, that's what I mean, shortly after that statement in court, the opinion of the court is what they said, but there is no reason to worry because the prosecutor will act in good faith and there is no reason to worry because a grand jury will have returned the accusation. Now you know how easy. In many cases, it is up to a prosecutor to get a grand jury to return an indictment and relying on the prosecutor's good faith may not be enough in some cases, I am not suggesting here, so if it is logical. and those are the only protections that the appeals court below gave and that is no longer his position, he is not defending that position, why shouldn't we send him back to the appeals court or issue an opinion making it clear that that is ?

It's not the law, I'm defending the appeals court's ruling and I believe there are layered safeguards that the court can take into account that will mitigate concerns about the excessively chilling presidential conduct that concerns us. We are not endorsing a regime that we believe would expose former presidents to criminal prosecution in bad faith by political animists without adequate evidence. A politically driven prosecution would violate the constitution under weight versus the United States. It is not something in the arsenal of prosecutors that prosecutors take an oath. The Attorney General takes the oath. Well, I don't want to overstate the Honor's concern about him potentially relying solely on good faith, but that is an ingredient and then the courts are ready to adjudicate motions based on the political animosity of the selected prosecutor.

This court relied on those same Protections in the Advan case. two years ago, but what worries me is that, as you know, the appeals court did not focus on the consideration of what acts or what documents we are talking about because of the adoption of what you called and I agree very much correctly as a tological statement because the fact of the prosecution was sufficient to remove any official immunity. The Indictment Act did not need to look at what courts normally look at when discussing a question of privilege or immunity. Well, I think I would disagree, Mr.

Chief Justice, with the idea of ​​removing immunity. There is no immunity that is in the Constitution unless this court creates it today. There is certainly no textual immunity. We don't present that that is the end of the story. United States vs. Nixon. It wasn't a text-based case or Nixon v. Fitz. We support both Holdings, but the important thing is that no public official has ever had the kind of absolute criminal immunity that my friend talks about, even with respect to the speaker debate clause. very limited, focuses on legislative acts, does not focus on everything a congressman does, and responds to a very specific historical circumstance that basically involved the other two branches, potentially harassing legislators and preventing them from doing their job, which is why it ended In the Constitution, none of that ended up in the constitution of the presidents and that is because one of the main concerns of the framers was the risk of presidential misconduct, they worked on this and adopted an impeachment structure that separated impeachment of office as a political remedy. of the criminal process this departed from the British model the British model was that you would be charged, criminally prosecuted and convicted in the same procedure the drafters did not want that they wanted a political remedy in case a president was engaging in conduct that would put at risk danger to the nation that he could be removed, cannot be prosecuted while he is a sitting president, that has been the long-standing position of the Department of Justice.

Mr. Dben, you question the proposition that a former president has some form of immunity, but as I understand your argument, you do recognize that a former president has a form of special protection, namely, that statutes that apply to everyone must be interpreted differently in some circumstances when applied to a former president, isn't that true? is true because the general principle that courts interpret statutes to avoid serious constitutional questions is justified and that has been the long-standing practice of the legal counsel office in the department of J. Well, I think this is more than a simple dispute over terminology, whether what the former president gets is some form of immunity or some form of special protection because it involves this difference that I'm sure you know very well, if it is just a form of special protection, in other words, the statutes will be interpreted differently, it applies to a former president, so that is something that has been applied to a former president.to be litigated at trial the former president can file a motion to dismiss and can cite olc opinions and the district court can say okay I'm not bound by olc and I interpret it differently so let's go to trial and then it has to be a trial and that can involve great expense and can take a long time and during the trial the former president may not be able to participate in other activities in which the former president would like to participate and then the result It depends on the jury the instructions to the jury and how the jury renders a verdict and then it has to be taken to appeal, so the protection is greatly diluted if it takes the form, if it takes the form that you have proposed and why. is that better is better because it is more balanced the blanket immunity that the petitioner advocates simply means that criminal prosecution is off the table unless he says that there has been an impeachment and conviction;

Those are political remedies that are extremely difficult to achieve in a case where misconduct occurs near the end of a president's term, Congress is unlikely to put in place the machinery to do so, and if impeachment has to occur after the president has left office, there is an open question as to whether that can happen or not, so we are arguing against the most consequential aspects of Mr. Sour's argument, right, that is correct and let me then turn to Why, how about we analyze it a little more? Do you agree that there are some aspects of the article? 2 Presidential powers that are exclusive and that Congress cannot regulate and therefore cannot criminalize absolutely well for other official acts that the president may perform and that are not within that exclusive power.

I assume, for the sake of argument, this question that there is no blanket immunity for those officials. acts but that to preserve the separation of powers to provide fair notice to make sure that Congress has thought about this that Congress has to speak clearly to criminalize the official acts of the president uh by a specific reference that seems to be what the opinions of the OLC, I know you disagree a little with that and with what the cases of this Court also suggest, so J kav. I'd like to take them all one by one because I don't think this Court's cases speak so broadly.

I definitely don't think so. that the opinions of the office of legal counsel defend this broad proposition that, unless the president is specifically named, he is not included in the statute and I do not think that is necessary to provide adequate protection for the valid functions of Article 2 from the president when you said unless I'm sorry to interrupt, but I just want to get this out there so you can incorporate it into the insert that you said unless there is a serious constitutional issue. Well, it's not a serious constitutional question whether a statute can be applied to the official act of the president?

Would you not always interpret the statute as not applying to the president, even as formulated, unless Congress had spoken with some clarity? that there is a serious constitutional question about the application of any criminal statute to the president, the problem is the vague statistics you know, obstruction and 3 371 fraud conspiracy, the United States can be used against many presidential activities historically with a creative prosecutor who wants to uh go after a president well let me try to backtrack that's what we're talking about historically is the risk and in the future the risk so you can take on all of that.

I think the question about risk is very serious and obviously it is an issue that this court has to evaluate for the executive branch. Our view is that there is a balanced protection that best serves the interests of the Constitution and that incorporates both the responsibility and the protection of the president and I want to look at the protections that exist, but perhaps it is worth returning from the beginning to the question of the statutory construction that you raised, the legal counsel's office has said, the crime of bribery, of course, applies to the president, it does not name the president, the 2011 course of justice section does not specifically name the president, I guess it is staff, very good.

I think that's what Brewster said. The 607 bribery statute says the president is right in front of me, so let me step back, even if just for a second, to what It was a quick exchange with Judge Kavanaugh that I just want to make sure I understand. Yes, did you agree that there are some core executive functions that the president performs that Congress cannot criminalize? Yes, that's right, it's a way I want to say that we can call. It's immunity or you can call it, they can't do it, but what's the difference? We call it an applied Article 2 challenge that we're okay, can we call it immunity just for short?

So I think we're narrowing the scope. reason for dispute here, it seems to me that there is an area where you admit that an official acts that Congress cannot criminalize and now we are just talking about the scope, well, I don't think that's fair, but I think it's very significant. gap between any official law and the small core of exclusive official acts. I understand that, but I want to explore that, okay, so, for example, let's say a president leads a largely peaceful protest and sits in front of Congress, uh, because he opposes a uh, piece of legislation that's being passed and it actually delays proceedings in Congress now under 1512 C2 uh that could be corruptly impeding uh an official procedure could be that core and therefore immunized or whatever euphemism word you want to use for that or is that not fundamental and so Therefore, it is actionable without a clear statement that applies to the president, it is not fundamental, the main types of activities that the court has recognized are the things that you would analyze in the Youngstown analysis and it is a fairly small set, but things like the pardon power, the power to recognize foreign nations, the power to veto legislation, the power to make appointments, these are things that the constitution specifically assigns to the president once he is out, so a president could be prosecuted for conduct which I described after his departure. office probably not, but I want to explain the framework of why I don't think that is a processing that is valid.

First I think it is necessary to go over all the kind of normal categories of analysis, do they exist? a serious constitutional question that arises in applying that statute to the president, if so, it may not apply at least in that fact, I thought you said that, that was my question and you said it was outside of that core, we will do it Call it immunity for simplicity's sake, yes, but there's a separate category, okay, so why couldn't he be prosecuted for leading a civil rights protest outside the capital that delays a vote on important legislation?

So I think what you need to do is look at all of the protective layers of analysis specific to the president, so one of them is whether the statute would be interpreted as not applying to his conduct, even if it's not part of that small nucleus of things that Congress cannot regulate everything if it operates to prevent the president from fulfilling his article, no, he could have given speeches against it, he did, yes, but he left, he did something else and that corruptly prevented and sought to influence well in an official proceeding, so I don't know, we're starting with the layers, I'm thinking about protection and now we're looking at whether the statute would be interpreted to apply to it, so there's a question of let's assume that it does.

I'll take it, uh. then the question arises whether he has the state of mind necessarily corrupt, no one knows what corrupt intention means. We've been around that tree, we'll probably find out and maybe it means he knows what he was doing wrong. The government told us that he knows that he is doing wrong, he knows that he should not be up there blocking the congressman. Well, let me go to the next level, which is that the president has access to the attorney general to provide legal advice and receives legal advice regularly. of the Attorney General about the legal scope of the president's activities and here we could follow two paths: one is that the Attorney General informs him that, as an incident of his Article 2 Authority and in the performance of the functions of the presidency, he can participate legally in that protest is a kind of First Amendment analogy to the president's official powers that the court is exploring in other cases.

Alternatively, the Attorney General could advise you. I'm sorry, Mr. President, there is nothing in the language of this statute that carves it out. I don't see a serious constitutional issue in this because you don't have to do that and I would advise you not to be prosecuted. No, if he receives a negative opinion from the attorney general, he still could not be prosecuted. I'm going to assume that most presidents aren't going to take a pot, but if he gets it and does it anyway, then he might be prosecuted properly, so if we're at that level, I think what we're really asking is If the president is subject to the criminal law and our answer is yes, he is subject to the criminal law.

Sir, can we go back to the bribery statute? I like that you understand that the only thing it covers is that the president is prohibited from requesting a receive funds in any room or building in the United States, that is correct, it is an extremely official building, it is a very limited mention yes and I really think it can As I understand it, there are two very limited provisions that mention that the president is included, that is correct. there are a lot of provisions that exclude the president, many, many more that exclude the president, right, it's kind of a small number on both sides of the now jce Barrett pointed out that if we say that a president cannot be included in a criminal case law, unless explicitly named, that would prevent the Senate from impeaching him with high crimes or misdemeanors because that means he's not subject to the law at all, so I think it's a tautology that you can't escape, just is what I think Justice Barrett was saying, and we would agree with that, that under my friend's position after impeachment he could be prosecuted, Ed, but under your statutory construction approach there would be nothing to prosecute him, that's exactly what it is. the point, which is if it is not covered by the penalty. law, he cannot be impeached for violating it right now.

Could we go further in this clear statement through the situations that you mentioned earlier where we have looked to see if the president is covered, is he contextually correct and what are the factors that we generally look at. I'm thinking specifically about whether the APA covers the president correctly and what we did there was look at what powers were being granted in the lawsuit, etc., we looked at the words, we looked at the structure, we looked. separation of powers issues related to our jurisprudence that said the president cannot be ordered to do anything and this would have been a subterfuge for that right, right, okay, so I don't know why two of my colleagues, uh, how they would. create a clear statement rule that says that when the law says that anyone cannot accept the bribe, that allows the president to do so, so I agree with Judge Sodor that that is the way this court has interpreted the statutes that exclude the president.

Justice Kavanaugh asked that this was very context-specific. The Franklin case basically involved a conclusion that we are very unlikely to say that the president is an agency, something the government said would be a peculiar understanding of agency when the effect of that would be that we would review the president's decisions under the statutes. for abusive discretion, which is something very extraordinary. I think even going back to Marberry, this is perhaps a point where I agree with my friend Marberry that the president's discretionary acts are not the kind of thing that the court reviews well, could you go back to your report and um, going back to what some of my colleagues have asked you?

There appear to be some restrictive principles in the concept that the president is subject to all criminal laws in all situations. correct, you agree that if he affects the central powers, then he would not be subject to any law that attempted to limit those central powers. correct, you are defining the central powers as those specified in article 2, which is essentially correct, yes, that is fine and it is the only one. The words in the constitution are that um uh, what the president has to do with the law is that he must see to it that the law is faithfully and correctly executed, that's true.

It is difficult to imagine that a president who breaks the law is faithfully executing the law correctly. You have to execute all the laws, okay, Mr. D. I really mean that presidents have to make a lot of difficult decisions about how to enforce the law and they have to make decisions on issues that are not resolved and they have to make decisions based on the information that exists. available you really did it I understood what you saidwell you know that if he makes a mistake, he makes a mistake he is subject to the criminal laws like any other person you don't think he is in a special, peculiarly precarious position, he is in a special position for several reasons, one is that he has access to advice legal about everything you do, you have a constitutional obligation to be faithful to the laws of the United States and the Constitution of the United States and make a mistake.

It is not what leads to criminal proceedings. There has been a little talk about the statutes that are issued in this case. I think they are fairly described as malaman statutes, uh, they engage in conspiracies to defraud the United States with respect to one of the most important functions, viz. the certification of the next president, well, I don't want to question the particular application of the 371 conspiracy to defraud the United States to the particular facts here, but wouldn't you agree that it is a peculiarly open-ended legal prohibition in that sense? that fraud under that provision, unlike most other frauds, the provisions do not involve, do not require any impairment of a property interest, is designed to protect the functions of the United States government and it is difficult to think of a more critical function. that the certification of who won the election, you know, I'm not like I said, I'm not arguing the particular facts of this case, but it applies to any fraud that seriously interferes with any government operation, so what does the government need?

The spectacle is an attempt to impede, interfere with or defeat a legitimate government function through deception and it has to be done with the Centre. These are not the types of activities that I think any of us would think a president should engage in to fulfill his mandate. 2 duties and particularly in a case like this I want to pick up on something the court said earlier about the distinction between a public official who acts to achieve public ends and a public official who acts to achieve private ends as it applies to this case the president does not have functions regarding the certification of the winner of the presidential election, it seems likely that the framers designed the Constitution that way because at the time of the founding presidents they did not have a two-term limit, they could run again and again and uh uh they were It is expected to potentially want to do that, so the potential for self-interest would explain why states hold elections, send electors to certify who won those elections and provide votes, and then Congress, in an extraordinary joint session, certifies vote and the president has no official role in that procedure, so it's hard for me to understand how there could be a serious constitutional issue in saying you can't use fraud to defeat that role, you can't obstruct it through deception , can. t depriving millions of voters of their right to have their vote counted for the candidate they chose thank you Council uh justice Thomas Justice Alo, could we briefly review the layers of protection that you believe exist and I'll start with what the D.C.

Circuit said, so the first layer of protection is that attorneys general and other lawyers in the justice department can be trusted to act professionally and ethically, yes how strong that protection is, I mean the vast majority of lawyers. Attorneys at the General and Justice Departments, and we have both worked at the Department of Justice for a long time, are honorable people and take their professional ethical responsibilities seriously, but there have been exceptions, both among attorneys general and among federal prosecutors, there have been rare exceptions, Judge Alo. but when we talk about layers of protection, I think this is the starting point and if the court is concerned about its strength, I would suggest that they look at the charges in this case, well, I'm going to talk about this. in the abstract because what we have before us, of course, involves this particular case which is immensely important, but whatever we decide will apply to all future presidents, so among the attorneys general there have been two who were convicted of criminal offenses while they were in office.

There were others, like Mitchell Palmer, who comes to mind and who are widely considered to have abused the power of his office. Would you agree that I would do it? But they are for officials from a long list of attorneys general who did not do so and in the Justice Departments. The judges who have several people who adhere to their position and only Leo, if he could, the point I wanted to make about this case goes to the general proposition of the allegations about the misuse of the Department of Justice to perpetuate the election. The fraud shows exactly how the Department of Justice works the way it is supposed to.

The petitioner allegedly attempted to get the Department of Justice to send fraudulent letters to states to overturn the election results. Yes, I understand. I understand Mr. Drien, but as I said, this case will have effects that go far beyond this particular prosecution, so moving on to the second level of protection that the DC Circuit cited. Federal grand juries will protect former presidents from unjustified indictments, how much protection does that offer? two levels of protection one is probable cause, the search requires evidence. I think some of the fears about unfounded prosecutions are not supported by evidence and are not going to come out of the opening game.

I mean, there's the old saying about writing a ham sandwich, yes, but I think you have a lot of experience in the Department of Justice and you come across a lot of cases where the federal prosecutor or another federal prosecutor really wanted to charge a case and the grand jury refused to do so. so there are cases like that, yes, yes, but I think the other, from time to time, there is also an eclipse, well, I think that is mainly because prosecutors have no incentive to take a case to a grand jury and ensure an audience. impeachment when they have no evidence to prove guilt Beyond a reasonable doubt, it is counterproductive, so the third level is that former presidents enjoy all the protections that are afforded to all criminal defendants and we have discussed that and that It may be true at the end of the day, but a lot can happen between the time an indictment is filed and the time the former president finally gets a vindication, maybe on appeal it's not so right, that's right, judge Leo, but I think we should consider that too.

The history of this country, as members of the Court have observed, is built into the Constitution that any president knows that he is exposed to possible criminal prosecution. My friend says that after impeachment and conviction we don't read the impeachment clause that way, but yes. It is a common fact that all former presidents knew they could be impeached and convicted and Watergate cemented that understanding. The Watergate Smoking Gun tape involved President Nixon and H.R. Halderman talking and then deciding to use the CIA to tell a false story to the FBI. close a criminal investigation. I, Mr.

Sour and others, have identified events in the past where presidents have engaged in conduct that could have been charged as a federal crime and you say, well, no, that's not really true, this is the page 42 of his writings, so what about President Franklin D. Roosevelt's decision to convert Japanese Americans during World War II? Couldn't she have been charged today under uh 18 USC 241 with civil rights conspiracy? Yes, given this Court's decision in Trump v. United States in which, you know, Trump v. Hawaii, excuse me, where the court said koram matu was annulled. I mean, President Roosevelt made that decision on the advice of his attorney general.

That's a layer of truth. I thought the attorney general ble thought there really was no threat of sabotage. as does Jer Hoover, so I think there is a lot of historical controversy, but it highlights that what happened during wartime raises potential concerns from the commander in chief about the demands of National Defense that could provide a challenge to Article 2 applied at that time. moment. I am not suggesting today, but the idea that a decision that was made and ultimately upheld by this court perhaps erroneously in the Coram Matsu case would support criminal prosecution under 241 which requires under United States vs.

Linear that the law has been made specific to that there is a notice to the president, I don't think that would have been satisfactory, well, we could review other historical examples. I won't, let me briefly touch on a couple more things, one is the relevance of the advice. of the council and I was not clear what his answer is, so if the president receives advice from the attorney general that something is legal it is an absolute defense, yes, I think it is under the principle of entrapment by a stopple, this is a doctrine of the due process that we referred to in our response brief in Garland v.

Cargill this term on page 19 where we cited this court's authority that if an authorized government representative tells you that what you are about to do is legal, it would be prosecute him for that will not give presidents an incentive to make sure they elect an attorney general who can reliably tell the president that it is legal to do whatever the president wants to do If there is any possibly conceivable argument in favor of So I think the constitutional structure protects against that risk: the president appoints the attorney general and the Senate provides advice and consent, and these are the kind of structural controls that have operated for 200 years to prevent the kind of abuses that my friend fears that they will occur as a result of this once-in-history prosecution, on the question of whether a president has the authority to pardon himself, which came up earlier in the argument, what is the answer to that question?

I don't believe it. The Department of Justice has taken the position that the only authority I know of is a member of the legal counsel's office who wrote in a memo that there is no independent authority, as far as I know the department has not addressed it. Furthermore, and of course this court had also not addressed it well when you address that question before us, are you speaking in your capacity solely as a member of the special counsel team or are you speaking on behalf of the department of justice, which has special functions? institutional responsibilities I am speaking on behalf of the department of justice that we represent the United States now, how do you not think that we need to know the answer to at least the position of the Department of Justice on that issue in order to decide this case because If a president has the authority to pardon himself before leaving office and the D.C.

Circuit is right that there is no immunity from prosecution, won't the predictable result be that presidents in the final days of their office will pardon themselves of anything? I really doubt that Judge Alo, I mean, presupposes a regime that we have never had, except for President Nixon and, as alleged in the indictment here, presidents who are aware of having committed crimes and have sought to protect themselves, I think the political consequences of a president who asserted a right of self-pardon that has never been recognized, that seems to contradict a fundamental principle of our law that no person shall be a judge in his own case, uh, those are an adequate deterrent.

I think this type of dystopian regime is not going to evolve. Let me end with just a question about what is required for the functioning of a stable Democratic Society, which is something we all want. I'm sure they would. I agree with me that a stable Democratic Society requires that a candidate who loses an election, even a very close one, even a very contested one, leave office peacefully if that candidate is the incumbent of Inc, of course, that's fine now, if He is an incumbent who loses a very close election. disputed election knows that a real possibility, after leaving office, is not that the president could retire peacefully but that the president could be criminally prosecuted by a staunch political opponent.

Won't that lead us into a cycle that destabilizes the functioning of our country as a democracy and we can look around the world and find countries where we've seen this process where the loser is imprisoned, so I think it's exactly the opposite. Judge Alo, there are legal mechanisms to challenge the results in an election and off the record, but I believe it is public knowledge that he and his allies filed dozens of election challenges and, as I understand it, they lost all but one that was not decisive for the result in any respect, there were judges who said that to sustain substantial claims of fraud that would overturn an election result certified by a state, you need evidence, you need evidence and none of those things manifested themselves, so there was an adequate way to challenge things through the courts with evidence, if it is lost, the results that have been obtained are accepted.

Has beenthe nation's experience. I think the court is very familiar with that, thank you justice, mayor, a stable democratic society needs the good faith of its public officials to be absolutely correct and that good faith assumes that they will follow the law correctly now, leaving that aside. There is no fail-safe system of government, which means we have a judicial system that has layers and layers and layers of protection for the accused in the hopes that the innocent will go free. We fail routinely, but most of the time we succeed in the vast majority of cases. They walk free, sometimes they don't and we have some post-conviction remedies for that, but we still fail.

We have executed innocent people, having said that judge um Alo went through all the mechanisms that could potentially fail in the end. If it fails completely it is because we have destroyed our democracy on our own, right? It's justice for myor and I also think there are additional checks in the system of course the constitutional frameworks designed a system of separate powers to limit abuses I think one of the ways abuses are limited is liability under the law penalty for criminal violations, but the final control is good will and faith in democracy and the crimes that are alleged in this case that are the antithesis of democracy that Please note that it is an encouragement to believe the words that somehow They have thus been suspected here that no man is above the law, whether in his official or private acts.

I think it is an assumption of the Constitution. Justice Kagan Mr. Drean. I want to go over your framework and make sure I understand it first in the small category of things that you say have absolute protection that are core executive functions. Yeah, um, what are those little categories? uh, pardon power, pardon, veto, veto, foreign recognition, uh, appointments. Congress can't say you can. Not appointing a federal judge who hasn't received, you know, a certain diploma, hasn't reached a certain age, there are some other powers, commander in chief, commander in chief, it's on the list, but I want to add to uh, my response on That is, Congress has substantial authority in the area of ​​National Security.

Congress declares war, raises armies, has power over money, in fact, it can be seen as not really being in that core set of functions over which no one has any power except the president over himself, I think there may be some aspects like leading troops in the field where the president's power is not completely reviewable, okay, now in um in the next category where we have left behind the core set, yes, but we are still in the world of official actions and that's where you say there are various rules of statute construction that could properly come into play, but you've characterized them as something different than just saying "oh, look, the statute doesn't say president, therefore it doesn't say it." It doesn't apply to the president, that's right, so I wanted to give him the opportunity to tell him that he knows what that analysis would look like in a given case and in the course of responding that he knows I'm thinking about something. like the OLC opinion that says bribery, the president can be tried and convicted of bribery even in the part of the bribery statutes that don't say president, why is that true?

That's true because there is no serious constitutional issue that the president needs. engage in bribery to carry out their constitutional duties, and the legal counsel's office noted that bribery is enumerated in the Impeachment Clause, so it falls outside of anything that could be considered inherent to the need for Article 2 to function. I think the premise of that olc opinion was that the bribe was just not official, noo it's the premise that the bribe was official and um and yet the president could be prosecuted for it. I think bribery is the kind of hybrid that illustrates the abuse of public office for private gain that we think is paradigmatic of the kind of thing that should not be considered immune in a bribery case, the public official cannot obtain the bribe without the official power to offer it as quidd or pro uh I guess the quo actually um uh then it really is a crime that can only be committed by public officials who misuse their power and it was one of the things that many people distrusted the most. of the acts that are charged in this IND or that would violate the Federal Criminal Law also involve the misuse of official power for private benefit, so if you said what the line is in this category, when should the statute be understood? as precluding presidential prosecution and when should the statute be understood as permitting it, what general principles should guide so that the general I think these principles arise from looking at what the general counsel's office has done, for example with respect to a federal statute that prohibited appointments to the courts of persons within certain degrees of consanguinity.

The legal counsel's office said this violates a very important appointment power of the president the power to appoint federal judges cannot be presumed that Congress intended to do so because it would raise a very serious constitutional question the president is out so there are categories of statutes in which the president is included, such as the grassroots lobbying statute that the legal counsel's office wrote an opinion on that and said that the president or other public officials go out into the world and promote their programs that cannot be the Congress intended to prohibit what it did intend to prohibit was using federal funds to elevate Jin, an artificial grassroots campaign that gave the appearance of coming from the people, but in reality was top-down and the legal counsel's office said that the president and the officials who carry out the president's mandates are subject to that statute, so it's more nuanced and then the third example I'll give you is the statute that would allow prosecution for contempt of Congress.

The legal counsel's office concluded that a good faith assertion of executive privilege as a reason for not providing information to Congress would preclude prosecution because Congress cannot be considered to have altered the separation of powers for such a man. I think he probably would have gone on to say that if Congress tried to do it, it would be considered unconstitutional, but again, this was a statute that didn't specifically name the president, there are only two that do, so the entire corpus of federal criminal law, including the crimes of bribery, sedition, murder, would it be out of bounds if taken to the uh to the extent that some of the questions have suggested and for the general principle, does it raise a serious constitutional question and, if so, to what extent? measure can be drafted individually and there may be some cases where statutes here could be created and, uh, it could be found that a particular act is protected or the statute across the board in such a wide range of applications is somewhat analogous to the excessive breath analysis, um, infringes on the power of the president, so we're going to say that the president just left now that set of issues that you see. important and U occasionally can be difficult um they also see them not really before us in the way that Judge Jackson suggested before what do you mean?

Do you think they are before us? We should clarify it here. We have a case. That? What else could we do? How should we deal with this? There are lingering questions that go beyond the question of whether there is the kind of absolute immunity that the former president is invoking, so I think the court has discretion to even reach that question. Although Judge Jackson is absolutely right, it was not raised in the district court or the court of appeals and the analysis he would use to get there is a conflation of a couple of principles, one of which the court often It has been resolved. threshold questions that are a prerequisite for an intelligent resolution of the issue presented, so in a case like United States v.

Larvae, for example, the court came to decide what advance assurances are valid under the Fourth Amendment before moving on to the question of whether the triggering condition because an advance order had to be in the order, so that's a principle and then a precedent that has some analogy to this is the Vermont Natural Resources Agency versus Xrel Stevens of the United States , it was a keam case and the first question was whether a state agency was a person within the meaning of the False Claims Act and the second question was whether, if the state agency had 11th Amendment immunity, it was triggered and the court wrote an analysis of why it could reach both questions, the question of reaching the person did not expand the Court's scope.

Jurisdiction and it made sense as a matter of constitutional evasion to do that, there are some considerations that go against this and I want to make it clear that for government actions in general we are not enthusiastic about parties that raise an immunity case that can be presented before a court in an interlocutory appeal and then smuggling other issues, so we would like to guide the court not to have an expansive approach to that issue, but the last thing I would say on this is part of our submission to this court. is that the Article One branches and the Article Two branches are aligned in the belief that this prosecution is an appropriate form of law enforcement.

Congress makes the law on the current executive by deciding to present it and since a basic component of that presentation is that Congress actually applied these criminal laws to official conduct. The Court may wish to exercise its discretion to resolve that issue. Well, I have one last set of questions that have to do with the official unofficial line and you heard Mr. Sour's answers to both judges. Barrett's questions and my questions about what he thinks counts as official years and what he thinks counts as unofficial here and I'm wondering what you took from his answers and also how you would characterize what is official and what is unofficial in this indictment then, I believe the petitioner admitted that there are unofficial acts that are alleged in the indictment and we agree with him on all of that.

I think I disagree with him on everything else he said about what is official and what is. Do not organize fraudulent lists of voters, create false documentation that says: I am a voter. I was appointed correctly. I am going to send a vote to Congress that reflects that the petitioner won instead of the candidate who actually got the most votes and that was found out by the governor and whose electors were designated to cast votes, that is not official conduct, i.e. , campaign conduct, and I think the D.C. Circuit in the explosive gambling case made an appropriate distinction: A first-term president running for re-election can act as an office seeker or office holder. and when you work with private lawyers and private PR, advise Jin to create fraudulent voter lists, that's not part of a president's job, so sorry, there's an accusation um. in the allegation that has to do with the dismissal of a justice department official, what we would do is that core protected conduct, we don't think it's core protected conduct, I don't think I would characterize that episode that way, we agree that The accusations by the Department of Justice were a use of the official power of the president in many ways, we believe that it aggravates the nature of this crime to seek the legal winner of the election as an OU candidate and having one self-certified with private actors is a private plan to achieve a private purpose and many of the co-conspirators alleged in the indictment are private, but for a sitting president to then use his presidential powers to try to increase the likelihood of his success makes the crime, in our opinion, so much worse in The Justice Department episode, uh, comes very late in the election cycle after many other plans had failed, and at that time the petitioner is alleged to have attempted to pressure the Justice Department to send false letters to the states. claiming that there were serious elect

oral

irregularities and that they should investigate who they certified as president, none of this was true.

All the officials in the Department of Justice said this is not true, we are not going to do that and at that time the petitioner is alleged to have threatened to dismiss the Department. justice officials who fulfilled their oath and replace them with another person who would carry it out, we do not seek to impose criminal liability on the president for exercising or speaking of exercising the power of appointment and dismissal, it is not what we seek to impose criminal liability for a conspiracy to using fraud to subvert the election, one means of which was to attempt to make the justice department complicit in this.

The case would not have been different if the petitioner had been successful and actually exercised the appointment and removal power and if those fraudulent letters had been sent, there would have beenmade the plan more dangerous, but it wouldn't have changed the crime and how do we think about things like the conversations with the vice president, in other words, things that if you say so? That way, it's clear that they would fall under executive privilege, but how does that relate to the question we're asking here? This is one of the most difficult questions for the Department of Justice and I want to explain why if we are operating under the lens of Gerald versus Nixon and looking at this the way we look at things when there is a private lawsuit filed against the president, we have a very broad view of what the outer perimeter of official presidential action is to be the most protection of the president against private lawsuits which, as this court explained in Nixon v.

Fitzgerald, can be very detrimental to the conduct of the president's business, for So if we put this through the lens of Fitzgerald then we would have to answer the question of whether he was acting in the capacity of an office seeker or he was acting in the capacity of an office holder and if you review the indictment you can find support for both of those characterizations and the The Department of Justice has not yet had to address how we would analyze that. set of interactions, thank you, Justice Gorsuch, yes he did, although he just wanted to confirm.

I thought I heard he thought the fiery game framework was appropriate. To a large extent, yes, Judge Gorsuch, we agree with the idea of ​​the distinction between office holder and office seeker, we also agree that if it is objectively reasonable to view activities as those of an office holder, then activates Fitzgerald's immunity. I think we would look more at the content of the actual interaction to make that determination that the explosive play suggested at least in The Facts of That Case might be appropriate. Can you give me an example of what you have in mind? I'm just trying to understand what nuances you suggest.

The explosive game adopted a generally very favorable pro-government framework. that we support, okay, not here because we don't think Fitzgerald applies in the criminal field. I understand it, but, but, but, leaving that aside, the distinction between an official act and a private position. Finder, your test, do you think you are good enough for government job? In this case, the department has not taken the next step since the explosive play decision, but let me offer some thoughts, just a score. I think I could clarify: The blowout decision focused on objective contextual indications to try to see if the president was acting like an activist rather than a uh you know, an office holder.

I think that that decision can also be made by looking at what the president actually said and let me illustrate that with an allegation that I think I talked about briefly, uh, that in one of the interactions between the petitioner and a state official, it is alleged that a petitioner He has said that all I need him to do is find me 11,000 votes and change. I think if you look at that content, it's pretty clear that the petitioner is acting in his capacity. The search engine is not president and we would look at that content, okay, okay, but the test I'm just focusing on the correct legal test.

I don't hear any objections to that, other than I think the DC circuit put more consideration of content out of bounds. so that would be fine and then I wanted to understand about basic immunity or whatever word we use, which seems to me that we are considerably narrowing the terrain of dispute here. Shall we analyze the reasons? The president's motives for his actions. I mean, for example, he has a lot of war powers as we've discussed, but he could use them to enhance his choice. His personal interests are a relevant consideration when analyzing the central powers, so I'm thinking about this. more like looking at the objective of the activity than the kind of subjective motive in the sense that the honorable Member speaks of.

I think there is a lot of concern about saying an electoral reason to be re-elected as such every first term as president. he does can be seen through the Prism by critics at least of his personal interest in re-election, yes, so you wouldn't want that. I think you would say that MO's personal motivations are off limits with respect to the Central Powers, probably well with respect to the Central Powers we think those are simply things that cannot be regulated at all, like the pardon power and the veto right, regardless of reason, right, regardless of Mo, that's fine, so we're in the non-central powers right where we're fighting about what role reasons play there.

I mean, one could remove an appointee, well, first of all, maybe let's ask this first is removing an appointee, a presidential appointee, a central power or a non-central power. central power in your world, so here you might need to differentiate between the top officials that this court in cases like Meyers and uh seila law has found to have a constitutional status of being removed at the will of lower officials where Congress has some regulatory latitude . impose restrictions on removal and the rest, yes, I understand that leaving that aside, yes, appointing a principal officer is a central power.

I am not prepared to say that there is no possible criminal regulation that says it cannot be done because of corruption. purposes to enrich oneself, for example, well, bribery, okay, but that's what I was wondering: do the motives enter into the analysis of Core Power or not? And now I hear that I thought I heard no and now I hear that maybe I think maybe it could be a little more appropriate because it's not involved in this case, the department hasn't had to take a position on exactly how these central powers would be resolved. under an applied constitutional analysis, no one is involved in this case and I guess I'm wondering and not worried about this case as much as future ones as well, but these non-central powers and maybe central powers in which a president acts with al less in part a personal interest in being re-elected, everything he does, yes, he wants. to be re-elected and if so, if you allow the motive to color that, um, I wonder how much is left of the central or non-central powers, so I would be fine with eliminating that. and considering that that is something intrinsic to our electoral system, we are not talking about applying criminal law to someone who makes an announcement that this program will be good for the United States and someone could come and say well, you really did it. to be re-elected leaving aside whether any of that violates a criminal law.

I know the next question is to assume he does. I doubt it actually does because I don't believe that criminal laws generally operate from motives rather than objectives. and purposes, but well, good intentions, I mean, you frame a reason is an intention and an intention is a reason, as you well know every day of the week, so let's leave that aside, I understand, we leave it aside, um, that really for me. It falls into a very different category and is also POS, there are some motives or intentions that are recognizable and some that are not. I mean, it's uncomfortable when we look back, like the court order, uh, going back to Marbury in the early cases.

I can't order a president, yeah, me too, you could hold him in contempt, sit down, sit down, sure, sure, can I try it one more time? Let me turn this around for just a second, okay and and and it didn't matter which one it was. The president's motives were we're not going to look behind this properly and the same thing in Nixon we said my goodness, Nixon v. Fitzgerald, that's something that the courts shouldn't get involved in because presidents have all kinds of motives and, again, I'm not worried about this. case, but I'm concerned about future uses of criminal law to attack political opponents based on accusations about their motives, whether it's re-election or who knows what corrupt means in 1512, right, we don't know what that means, maybe we'll find out soon , but um, the dangerousness of accusing your political opponent of having bad motives and whether that is enough to overcome your central powers or any other limits, reactions, thoughts, yes, I think you are asking a very difficult question, that is the idea correct.

I mean, that's the idea of ​​testing the limits of both sides'

arguments

and I'm going to say something that I don't normally say and that's that's not really involved in this case, we don't have, we don't have bad policies. reason in that sense, I understand that I appreciate it, but you also appreciate that we are writing a rule for yes for all ages, yes, and I think I would start by looking at the statutes and then seeing what restrictions they place on the president's decision. conduct and, for example, the statute that prohibits fraud to frustrate the legal functions of the United States, the statute defines what the purpose that the defendant must have in mind, it has to be to defeat something that the United States is doing and has be through deception, I don't think that brings us into the realm of seeking motives in the area that concerns us so much.

I think the court would be trying to do something that would undermine the presidency and the executive branch and 1512 C2. we may have different views on the clarity and scope of that statute. I think that if the court interprets it in a corrupt way it implies an awareness of irregularity and raises it to the awareness of illegality, then we are in a different area, wanting to be re-elected is not an illegal motive and you do not have to worry about prosecuting presidents for that, yes, okay, thank you, Mr. Dre, Judge Kavanaugh, as you have indicated that this case has enormous implications for the presidency, for the future of the presidency, for the future of the country in my I see, you referred to the department several times as if he had supported the position, who in the department is the president, the Attorney General, the attorney general of the United States, part of the way the special counsel works is as a uh, component of the Department of Justice , the regulations provide for us to communicate and consult on a matter of this magnitude that involves actions that are far beyond this processing like court questions, so it's an attorney general, yeah, okay, um second, uh as justice.

Gorsuch uh I'm not focused on the here and now of this case um very concerned about the future uh and I think one of the Court's biggest mistakes was Morrison v. Olsen uh I think it was a terrible decision for the presidency and for the country. and not because there were bad people who were independent councils, but that President Reagan's administration, President Bush's administration, President Clinton's administration were really hampered, yes, in their opinion, all three of them by the structure of the independent Council and what worries me here. It's just that that was kind of relaxing Article 2 a little bit for the needs of the moment and I'm concerned about the kind of similar situation that applies here where a prosecutor investigates a president in each of those circumstances and someone chosen from the opposite. party of the current president uh and uh generally uh that's how it worked and Justice Scalia wrote that the fairness of a process should be judged on the basis of what it allows to happen, not what occurred in a particular case that you have emphasized uh many times regularity the Department of Justice and said uh and I think this applies to the independent Council system and could apply if presidents are routinely investigated in the future.

One thing is for sure, however, it involves investigating and perhaps prosecuting a particular individual. Imagine a less equitable way to fulfill the executive responsibility to investigate and prosecute what the reaction would be if in an area not covered by the statute the department of justice published a public notice inviting applicants to an assistant for an investigation into possible prosecution of a certain prominent person. This does not invite what Judge Jackson described as choosing the man and then searching the law books or putting investigators to work charging him with some crime to ensure that the investigation must relate to the criminal offense area specified by the statute, but that has often been and nothing prevents it from being very broad.

I paraphrased it at the end because it was referring to the judges. Yes, the concern going forward is that the system will do that when former presidents are subject to prosecution in the Morrison versus story. Olen tells us that it won't stop, that it will go back and be used against the current president or the next president or the next president and the next president after that, all I want him to try to allay that concern is why. Isn't this Morrison V Olsen Redux? If we agree with you, first of all, the independent Council regime had many structural features that emphasized independence at the expense of accountability.

We don't have that regime now, but even under that regime, Justice. Kavanaugh, I think if you look at Lawrence Walsh's report on Iran Contra, I think this gets to a very fundamental point for the court to consider, Judge Walsh said I investigated these matters, the evidence did not come close to establishing criminal violations, so I've lived from Watergate to the present through the Councilindependent ERA with all its defects without these processings having gone on a runaway train. Well, I think President Reagan, President Bush, and President Clinton, whether rightly or wrongly, thought that the opposites thought against what you just did. she said: I don't think anyone likes to be investigated for a crime, but it didn't result in the kind of vindictive prosecutions that I think her honor raises as a possibility.

Now we have a different system. I think there was a consensus throughout Washington that if there were flaws in the independent Council system, it expired, we are now within the Department of Justice and full responsibility lies with the attorney general, so the special Council regulations now do not work in the same way that the Independent Council regulations do and I, this court would have something that I think if the Independent Council statute were revived, I'm not sure anyone would be in favor of that at the moment. I was just saying that this is kind of a reflection of that's one way someone might perceive it, but I assume. your point about the different internal structural protections and as Judge Scolia said, let me, I don't want to suggest anything like that in the present case, I'm not talking about the present case, so I'm talking about the future, uh, another of the SEC. point you made um uh uh you talked about criminal statutes, it's very easy to characterize presidential actions as false or misleading based on a vague statute, so um uh, President Lyndon Johnson's statements about the Vietnam War MH say something is false , uh, what he says about the Vietnam War 371 prosecution turns out to be false, so after he takes office, I think not, but we need to this is an area that I think deserves serious and nuanced consideration.

Statements a president makes to the public don't really fall within the scope. of criminal statutes have never been prosecuted I realize that the court can well say what would happen if they were and then I think we come to what I would consider a difficult constitutional question that would probably divert the court from trying to resolve today although I think which is very different from our case and distinguishable in important ways, here we are dealing with two branches of government that have a primary interest in the integrity and freedom of their interactions with each other, on the one hand, the president, of course.

He should be very free to send his Cabinet and sub-Cabinet officials to testify before Congress to provide them with the information they need to enact legislation and formulate national policies, and we are very concerned about anything that might hinder that on the other side. of the Equation Congress has a compelling interest in receiving accurate information and, at a minimum, not information that is intentionally and knowingly false that taints legislation. How do I think it came about before President Ford's pardon? Very controversial at the moment, yes, enormously. unpopular probably why he lost in '76 yes, it is now considered one of the best decisions in presidential history, I think most people, if they are thinking right, if I grant this pardon to Richard Nixon, could he be investigated for obstruction of justice on the theory that I'm interfering with the investigation of Richard Nixon, so this would fall into that little core area that I mentioned to Justice Kagan and Justice Gorsuch about presidential responsibilities that Congress cannot regulate, what It happens with President Obama's drone strikes, so the Legal Counsel's office looked at this very carefully and determined that, number one, the federal murder statute applies to the Executive Branch; the president was not personally carrying out the strike, but the aiding and abetting laws are broad and he determined that a public authority, uh, exception, that is incorporated into the statutes and that applies particularly to the murder statute because it speaks of homicide Illegal does not apply to drone strike, so this is actually the way the system should work.

The Department of Justice takes criminal law very seriously and analyzes it through analysis. very carefully, with established principles, you document them, you explain them and then the president can move forward according to them and there is no risk of prosecution for that course of activity. Thanks for his answers. Judge Barrett. Mr. dven. I want to continue that Public Authority defense, so I'm looking at the OLC memo that David Baron wrote that you cited in his writings and it describes the Public Authority defense citing the Model Penal Code. There are a few different definitions, but I'll just highlight this one. justify conduct required or authorized by the law defining the duties or functions of a public official, the law governing the armed services or the lawful conduct of war, or any other legal provision that imposes a public duty that sounds very much like dividing There is a line between officials and private conduct, I think it is narrower and I recognize that it is a defense, not an immunity, but when we look at its definition, are you acting within the scope of the authority conferred by law or fulfilling a duty conferred by law?

I think it's more limited than a smear game, more limited than Nixon versus Fitzgerald, but that's what it seems to me, do you agree? or I disagree, you know, just SP. I certainly understand the intuition that when you act outside your legal authority, you have entered into some sort of frolic and detour and are no longer carrying it out. I really don't think that will work for you. presidential activity, the only way he could have implemented the orders is by exercising his authority as commander in chief of communications over the Armed Forces or his authority to supervise the executive branch, those seem like central executive acts to me, there is a possibility that it could be illegal . executive act I'm not sure I understood your answer.

I mean, I was thinking that it seemed to me that in his writings and today, when he referred to the defense of Public Authority, he said that that is one of the built-in protections and why immunity is not. necessary because in some of these cases, when the president takes actions that you know the Court has been asking for, this could result in a criminal proceeding, you say that you could raise this defense of Public Authority and that is why I say that is not this defense of Public Authority? If raised, doesn't that sound like a defense that says: well, I was authorized by law to perform this function and therefore I acted legally, therefore I acted legally and I am not criminally responsible?

Does that imply an investigation into the motives? to what Justice was asking, could you say that I was acting within the scope of my authority in granting a pardon to remove a cabinet official, but then the Public Authority defense might not apply because you had a bad motive in doing so? No, no, I don't think so. so, J. spett, I believe it operates based on objective facts revealed to the council. The council then provides advice in this case to the Department of Justice and it is an objectively valid defense, it is a complete defense to prosecution, so what would be so bad?

I want to say one thing. What strikes me is different, well, one thing that is obviously different between the defense of Public Authority and Immunity is an interlocutory appeal and resolving it from the beginning. What would be so bad about an issue like that being resolved at the threshold of immunity? The same type of question that could be raised as a defense later, but would be raised at the threshold as immunity and then an interlocutory appeal would be available and it would be a freedom from trial, but not a jet out, not a get. free cart get out of jail yes, I understand that and I think that if the court believed that was the proper way to craft presidential protections, it has the authority to craft procedural rules that implement its Article 2.

Calling it a defense, but under many statutes, it's actually an exception to liability itself and what you're really talking about is addressing the general issue and generally in criminal cases, even in cases that involve First Amendment issues, like the threat statutes, the jury is the determining factor of the decision. facts and I have a little difficulty with the idea of ​​trying the whole public authority question separately before the judge and having it presented in an interlocutory appeal with review of the facts before you can present it in a criminal case that says it yes I would prefer a regime in which the court altered some of the procedural rules surrounding the president than an absolute blanket immunity that eliminates the possibility of criminal prosecution even if it were a fundamental violation of the statute against the attorney general. council and you don't have an overriding public opinion, you think it has to be a jury question and I mean, let's see, I wasn't necessarily proposing to treat it as a defense that was made at the beginning and then subject to interlocutory appeal.

I was proposing what about an immunity doctrine that was based on the Public Authority defense and that the Department of Justice believes would apply otherwise, so just stick with me on that for a minute, why would it be so bad if it didn't? Was it a jury question? I mean, it seems to me that some of these concerns about Article 2 would be exacerbated if it were presented to a jury instead of a judge, so I think some of them are judge issues that could be resolved in the impeachment if the Department of Justice ever returned a response. accusation that the granting of this pardon or this series of pardons constituted obstruction of justice.

I'm having a little trouble formulating a hypothesis on this, but you could file a motion in the impeachment that says that Article 2 prevents Congress from regulating these activities the impeachment should be dismissed and if the court wants to attach to that type of rule an interlocutory appeal then that would be less of a safeguard than what my friend is proposing here, other types of defenses, although they really intersect with the general issue and for those I have much more time to see how the court could implement that and whether there would be a cost of going to trial.

Yes, there is no perfect system. We are trying to design a system that preserves the effective functioning of the presidency and the accountability of a former president under the rule of law, and the perfect system that calibrates all of those values ​​has probably not been devised. I think the system we have works pretty well maybe it needs some auxiliary rules. It is different from my friend's radical proposal. I agree, let me ask you about state prosecutions because if the president has some kind of immunity implied by Article 2, then that immunity would protect him and state prosecutions, plus a lot of the protections you're talking about are internal protections. that the federal government has protections in the Department of Justice that obviously don't apply in many, many, many state and local jurisdictions across the country, what do you have to say to that to raise a supremacy clause issue and the court will be executed? an analysis of the supremacy clause that would likely begin with basic principles like Mullik v.

Maryland (states do not have the authority to overburden federal functions) and then move forward in Reagle, where the court said a state prosecution for murder of a federal official who guarded a The Supreme Court justice and who shot was not allowed if the court thought a more categorical rule was needed for the states. I believe that the supremacy clause certainly leaves it within the Court's prerogative to determine that the president, unlike all other officials, deserves more than a more robust federal defense than the one I just justified would still be a defense in the states, it would not be.

I mean, that's my point, you know, it's one thing to say, well, President, there won't be these prosecutions that are politically motivated the things that Judge Kavanagh was referring to that could be the danger of the system, one thing that that we have to worry about and that it might not prevail, but you know it's a concern, it's totally different when you take it outside of the Department of Justice and its structures and then throw it somewhere else, the idea in all the states, the idea of ​​immunity I think it makes a lot more sense if you're talking about something that protects the former president from being prosecuted and the state and state and local level, so I don't know if you would have to design a system where the president would have to be tried at the state level. state and local, certainly within the authority of the Court as a matter of supremacy clause law to find immunity, but We have been talking here in quite some detail about the distinction between official acts and private acts that will have to be determined by some type of process.

Any immunity defense that the court announces may still be met with a state assertion that we are To prosecute private conduct, some process will be necessary. I think having some legal process is no reason to leave out a Nuance system that actually looks at whatprotections are necessary rather than what would provide the absolute maximum protection for former presidents. even if we recognize that it is highly prophylactic, I totally agree and was not really contrasting the rule of absolute immunity. I was saying that if there was some kind of official private act, its consequences to make the immunity okay and since you mention the private act, it is my Last question, I asked Mr.

Sour about pages 46 and 47 of his brief . Yes, you say that even if the court were inclined to recognize some immunity for the official acts of a former president, it should be sent to trial because the indictment alleges substantial private conduct. Yes. You said that private conduct would be sufficient. Yes, the special counsel has expressed some concern about Speed ​​and wants to move forward so he knows the normal process. What Mr. Sour asked for would be that we stop him if we decided that there were some official acts. immunity and let that be resolved next is another option for the Special Council to simply proceed based on the private conduct and abandon the official conduct, well, two things about that, first, first of all, there really is a built-in conspiracy here that had different components as alleged in the indictment, working with private attorneys to achieve the objectives of the fraud and, as I said before, the petitioner seeks his official powers to try to make the conspiracies more likely to succeed, we would like to present it as a integrated process. a picture to the jury so they can see the sequence and severity of the conduct and why each step occurred if the court said the fraudulent election scheme is private to communicate with state officials as a candidate is private trying to exploit the violence after on January 6 by calling senators and telling them to please delay the certification procedure is a private campaign activity.

We still think, contrary to what my friend said, that we could present the interactions with the Department of Justice, the efforts to pressure the vice president for the evidence value of him as a sample. the knowledge and intent of the defendant and we would take a jury instruction that would say that criminal guilt cannot be imposed for the actions he took, however, it can be considered to the extent that it refers to knowledge and intent, that is the usual rule with protected speech for The Wisconsin v. Mitchell example, my friend, draws an analogy with the speech or debate clause.

Well, we don't think the speech or debate clause has any applicability here. It's a very explicit constitutional protection that says senators and representatives will not be challenged anywhere else. Therefore, it carries an evidentiary component that goes beyond any official act of immunity that you are seeking and the last thing I would say about that is that we think that the concerns about the use of evidence of presidential conduct that might otherwise be official and be subject to executive privilege United States v. Nixon has already addressed that, which balances the interest and confidentiality of the president with the judicial system's need for all available facts to arrive at the truth and having overcome that, we present that evidence can be used even if guilt can Don't rest, thank you Judge Jackson, just for picking up where Judge Barrett left off.

I think I heard you say that even if we decide something here, it's a rule, that's not the rule you prefer, that somehow separates private acts from official ones. and saying that that should apply here, there are enough allegations in the indictment, in the government's opinion, that fall into the group of private acts and that the case should be allowed to proceed properly because in an ordinary case it would not stop just because some of acts supposedly are immunized IM even if people agree that some are immunized if there are other acts that are not the case I would move on that's fine um back to the clear statement uh argument I'm struggling with that argument. because it is my understanding that when an accused criminal law is read strictly in the presidential context so as not to apply to the president, it is avoiding a constitutional issue, so that is done to avoid having to deal with the constitutional issue, so, what?

What is the The constitutional question that is being avoided in that type of situation is serious, this is only an application of the ordinary interpretation of criminal laws that this Court makes and that, if there is an interpretation available that avoids a serious constitutional question, the Court's preference is and the nature I guess I'm going to understand is that what is being avoided in that situation is the question of whether a former president or you can be held criminally responsible for committing the alleged act that is alleged in that statute consistent with the Constitution, so we look at the statute, it has some elements and we say, well, if this statute and those elements apply to the conduct of the president in this situation, we would have to answer the question: can the president be held responsible ? consistent with the Constitution for that behavior is that right, so the first step in that analysis I just want to say yes, but the first step is if there is ambiguity and these statutes apply to anyone, they apply to anyone, there is no ambiguity in those sentences from this court. in nardone v.

United States concluded that similar words anyone do apply to government officials very well, suppose I guess I'm just trying to understand that we are avoiding a constitutional issue if we do that in the ordinary case and what I find confusing about of this case is that we are not asked to avoid the constitutional question, in fact the question of whether or not the president can be held accountable under the Constitution or has immunity is the question before us, so I don't understand how the clear statement type of analysis works, it seems completely logical to me that we hold that presidents cannot be prosecuted under any criminal statute without a clear statement from Congress to avoid the question of whether or not the Constitution allows them to be prosecuted, we would have I think the court would have to have some justification that is not evident in either the existing Doctrine or the text and just a data point to for the court to think about how the clear statement rule works in United States v.

Sun Diamond in a Tipping case that the court is likely familiar with Justice Scalia wrote an opinion for a unanimous court in which he used a hypothetical iCal about what would happen if the president received a sports replica of a jersey at a typical White House event, that would violate section 2011 C and the court. offered a construction that had to be because an official act to avoid that problem, I think if there was such a well-received understanding that presidents are not included in general Federal Criminal Law, unless the president is specifically named, which not in section 2011 Justice Scalia would have thought about that and some member of the Court would have reacted and none of them did well.

Let me continue by asking what you think the petitioner's position is in this case because we've had a lot of talk about drawing the lines, Justice Kavanaugh, Justice Gorsuch, suggested that we should think about the Blasing game and that within the first one we have private versus the official and then within the official, now we have something about the central law versus other laws as we try to figure it out. You know at what level the president will have immunity, but I took the petitioner's argument in this case of not inviting us to participate in that type of analysis.

I thought he was arguing that all official acts get immunity and that's why I didn't do it. I understand that we have to delve into what official acts do, so my question is why is it not sufficient for the purposes of this case, given what the petitioner has argued to simply answer the question of whether all official acts get immunity. uh, that's enough and if the court answers that question the way the government has presented it, that resolves the case. I want to make a clarification that I may have left the court with some uncertainty about the analysis of the official act that my friend is talking about. it's the Fitzgerald v.

Nixon outer perimeter test, which is extremely protective of the president, it doesn't look at central versus ancillary, it says everything the president does is a target for private civil lawsuits, which is not a big deal and therefore everyone is isolated, that is a concept of absolute immunity, everything that is official in the outer perimeter is not subject to liability, that is correct, so we do not have to go well, we have the cube of the official thing, now let's find out what within that could be subject to liability not according to the theory of absolute immunity correct neither according to the theory of absolute immunity nor according to our theory uh according to your theory everything is protected according to our theory there is no immunity, but This is where I would make the distinction, there are applied constitutional challenges that you If we look at the Youngstown framework and this Court's usual method of analysis, we determine whether there is a violation of Article 2, so what you're saying is that even if we reject the theory of absolute immunity, it's not like the president, as you know, doesn't have the opportunity to make the kinds of arguments that arise at the level of you know this particular law or this particular statute has a problem in retrospect.

I think I hear you saying that we shouldn't try to abstractly set those boundaries in the future. of time as a function of a sort of blanket immunity would allow each allegation to be brought and then we would decide in that context yes with the added note that the petitioner has never made that argument and I think it would be up to a district court to decide whether to take that way at this point in the litigation, he has put all his eggs in the basket of absolute immunity, and if we invite him, you know, if we see the question presented as broader than that and say, let's engage in the core, uh, officer versus non-central and trying to figure out the line, um, is this the right vehicle to craft that test?

I mean, I had understood, um, that most, if not all, but most of the accusations here, there's really no plausible argument. that would fall into the core versus not such that they are immune, we don't believe that there is any core act that has been alleged in the indictments that would be out of bounds as a matter of Article 2, so if we were to do this type of analysis we try to find out what the line is, we should probably wait for a vehicle that actually presents it in a way that allows us to test different sides of the standard we would be creating, I don't see any.

It is necessary in this case for the court to embark on that analysis. Well, the last type of questions I have to do with what I consider to be a very legitimate concern about the abuse of process about future presidents who are being attacked. things they have done in office. I take that concern. I think it's a real thing, but I wonder if some of it might also be mitigated by the fact that the existing administrations have a self-interest in protecting the presidency and understand that if they go after the former guy, they will soon be the former guy and there will be created a precedent that will be problematic, so I'm wondering if you could comment on whether part of the caution of the justice department and the prosecutors and all of that comes from an understanding that they will soon be former presidents as well.

I absolutely believe and would place this as a structural argument that is built into the Constitution itself. The executive branch, as this court knows, has interests of the executive branch that sometimes asserts in opposition to Congress so that the proper functioning of the president is protected and I believe that this value would be operative and is operative in something as transcendental as impeaching a former president of a crime and I would also say that I think and ask you to comment, you know. Pre-presidents are concerned about being investigated and prosecuted and to some extent chilling their ability to do whatever they want in office and that is a concern on the one hand, but can you comment on the concern of having an unlimited president while in office? a president who knows that ultimately he doesn't have to follow the law because there's really nothing more to say than political responsibility in terms of impeachment.

I mean, here we have amicus briefs from Professor Leaderman, for example, who says, you know, a president is not prohibited by the Statute from committing perjury under oath on official matters corruptly altering destroying or concealing documents to prevent them from being used in an official proceeding bribing others to commit perjury bribing Witnesses or public officials and goes on and on and on about the things a president in office would do knowing he has no criminal liability, I see it as a concern that is at least equal to the president is so concerned about criminal prosecution that, you know, he'sa little limited in your ability to function, so can you talk about those competing concerns?

So, Judge Jackson, I think it would be a radical departure to announce a blanket rule of immunity that no president has ever had or needed. I believe that we have also had a system that works perfectly and that we have seen occasional episodes of presidential misconduct. The Nixon era is the paradigmatic one. The accusation in this case alleges another. For the most part, I believe that the legal regime and the constitutional regime that we have works and alter it. poses more risks thank you thank you thank you rebuttal of the Council Mr. SAU I have nothing else Your Honor thank you lawyer lawyer the case is presented the honorable court is now adjourned until Thursday, May 9 at 10:00