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

last year

On Thursday, the Supreme Court heard Trump v. United States.

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Transcript

00:00:00Mr. Sauer

00:00:05Mr. Chief Justice and may it please the court

00:00:09Without presidential immunity from criminal prosecution there can be no presidency as we know it

00:00:16for 234 years of American history

00:00:19No president was ever prosecuted for his official acts

00:00:24the framers of our Constitution

00:00:26Viewed an energetic executive as essential to securing Liberty

00:00:31If a president can be charged put on trial and imprisoned for his most controversial decisions as soon as he leaves office

00:00:39That looming threat will distort the president's decision-making precisely when bold and fearless action is most needed

00:00:48Every current president will face de facto blackmail and extortion by his political rivals while he is still in office

00:00:57The implications of the court's decision here extend far beyond the facts of this case

00:01:05Could President George W Bush have been sent to prison for obstructing an official proceeding or allegedly

00:01:12Lying to Congress to induce war in Iraq

00:01:16Could President Obama be charged with murder for killing US citizens abroad by drone strike

00:01:22Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies

00:01:32The answer to all these questions is no

00:01:36Prosecuting the president for his official acts is an innovation with no foothold in history or tradition and

00:01:43incompatible with our constitutional structure

00:01:46The original meaning of the executive vesting clause the framers understanding and intent

00:01:52in unbroken historical tradition spanning 200 years and

00:01:56Policy considerations rooted in the separation of powers all counsel against it. I

00:02:01Welcome the court's questions

00:02:04Mr. Sauer to your last point. Could you be more precise as to the source of this immunity?

00:02:10The source of the immunity is principally rooted in the executive vesting clause of article 2 section. How does that happen?

00:02:17That the source of it Justice Thomas

00:02:20I think is as you described in your separate opinion than Sivitofsky for example that the executive vesting clause does not include only

00:02:27executive powers laid out explicitly therein but encompasses all the powers that were originally understood to be included therein and

00:02:34Marbury against Madison itself provides strong evidence this kind of immunity a broad principle of immunity that protects the president's official acts

00:02:42From scrutiny direct sitting in judgment, so to speak of the article three courts

00:02:47Is that that's matches the original understanding of the executive vesting clause. How exactly would we determine?

00:02:54What the what an official act is

00:02:58I'd say I'd point the court to two cases for that. Obviously Fitzgerald against

00:03:03Nixon is

00:03:04The best guidance of the court gives where the course court adopted the outer perimeter test in this court

00:03:10Engaging analysis that analysis there. That's very instructive here where it looked at the level of specificity at which the acts are described in

00:03:18In that case a civil case here would be the indictment

00:03:21What if you have let's say the official act is appointing ambassadors and the president appoints a particular individual to a country

00:03:29But it's in exchange for a bribe

00:03:31Somebody says I'll give you a million dollars if I made the ambassador to whatever how do you analyze that that I think would fall?

00:03:37Under this courts discussion in Brewster where the court held with respect to legislative acts that bribery is not an official act

00:03:43Which also matches the court the common law background

00:03:46so I the way that this court in Brewster kind of

00:03:49Sliced at the joint was to say accepting the bribe and the agreement to sex the bribe are not official acts

00:03:55That's private conduct. Okay, it's not an appointment would not be would be an essentially unrestrictable power of this court that Congress couldn't directly regulate

00:04:02It's not accepting the bribe is in an official act but appointing an ambassador is certainly within the official responsibilities of the president

00:04:09So, how could you how does your official acts or the official acts?

00:04:16Order boundary

00:04:18Come into play when it's going to be official

00:04:21Assuming that the president is innocent, but the whole question is whether he's going to be found innocent or guilty

00:04:28Again, I think Brewster and Johnson do address that or very persuasively at least in a slightly different context Brewster and Johnson say the

00:04:36Indictment has to be expunged of all the immune official acts. So there has to be determination. What's official? What's not official?

00:04:43He expunged the official you say, okay, we're prosecuting you because you accepted a million dollars

00:04:47They're supposed to say not say what it's for because the what's for part is within the president's official duties

00:04:54There has to be we would say independent source of evidence for that and keep in mind that this indictment charges what this court is described

00:05:01As unrestrictable powers of the president

00:05:03So the premise the logical premise of this indictment is that Congress by passing vague in general

00:05:09Criminal statutes has purported to directly regulate the president's exercise of things like the exercise of the appointment and removal power

00:05:17Things like his ability to speak directly to the American public

00:05:20core exercises of his authority under the recommendations clause to

00:05:23Recommend to Congress members of Congress the measures he thinks necessary and expedient

00:05:28so you have a

00:05:30indictment in this case that goes right to the heartland of the president's powers that alleges a whole series of official acts and tries to

00:05:36Tie them together by saying well

00:05:38There's a private aim or a private purpose in that case and that's a situation which of course could be alleged in virtually any

00:05:44Council it can be alleged, but it has to be proven

00:05:49Malum in say is a concept long

00:05:53Viewed as appropriate in law that there's some things that are so fundamentally evil that they have to be protected against

00:06:02now I think

00:06:04what and

00:06:06your

00:06:08Answer below. I'm gonna give you a chance to say if you stay by it if the president decides

00:06:16that his rival is

00:06:19a corrupt person and

00:06:22He orders the military or order someone to assassinate him

00:06:28Is that within his official acts that for which he can get immunity?

00:06:33It would depend on the hypothetical, but we can see that could well be an official

00:06:36I could and why because he's doing it for personal reasons. He's not doing it

00:06:42At like President Obama is alleged to have done it to protect the country from a terrorist

00:06:49He's doing it for personal gain

00:06:51And isn't that the nature of the allegations here that he's not doing them

00:06:57doing these acts in furtherance of

00:07:01an official

00:07:04Responsibility he's doing it for personal gain

00:07:06I agree with that characterization of the indictment and that confirms immunity

00:07:11Because the characterization is that there's a series of official acts that were done for an on now because immunity says

00:07:17Even if you did it

00:07:19For personal gain, we won't hold you responsible

00:07:24What do you how could that be

00:07:27That's an extremely strong doctrine in this courts case law in cases like Fitzgerald

00:07:32Well, we go back to Justice Thomas's question, which was where does that come from?

00:07:38There are Mika here who tell us that the founders

00:07:42Actually talked about whether to grant

00:07:45immunity to the president and in fact

00:07:48they had had state constitutions that granted some criminal immunity to governors and

00:07:55Yet they didn't take it up

00:07:57Instead they pass an impeachment clause that basically says you can't remove the president from office

00:08:06except by a

00:08:08trial in the Senate

00:08:10But you can impeach him after

00:08:14so

00:08:15Or you can impose criminal liability. We would be creating a

00:08:21Situation in which we would be saying is this is what you're asking us to say

00:08:26Which is that a president is entitled not to make a mistake

00:08:33But more than that a

00:08:36President is entitled for total personal gain to use the trappings of his office

00:08:44That's what you're trying to get us to hold

00:08:48Without facing criminal liability

00:08:50Your honor I would say three things in response to that first the doctrine that immunity does not turn on

00:08:57The allegedly improper motivation or purpose is something that this court has reaffirmed in at least nine or ten

00:09:03That's absolute immunity, but qualified immunity does say that whatever act you take

00:09:08Has to be within what a reasonable person would do. I'm having a hard time thinking

00:09:15that

00:09:17creating false documents

00:09:19That submitting false documents

00:09:21that ordering the assassination of a rival

00:09:25That accepting a bribe and a countless other laws that could be broken for personal gain

00:09:31That anyone would say that it would be reasonable for a president or any public official to do that

00:09:38Your honor as this court said very persuasively in Fitzgerald that the allegation that this particular act

00:09:45Would be done for an unlawful purpose or was unlawful could be made in every case and therefore if that were the doctrine that the

00:09:53allegation of improper purpose is what deprives the

00:09:56Objective acts of their immunity then the immunity would have no purchase and that's reflected in many of the other court's cases

00:10:03Isn't isn't the work though of the improper motive

00:10:08At least in the absolute immunity context to tell us what are official acts and what are not

00:10:14I mean, I had understood that even in the app. First of all, your ask is absolute immunity, isn't it?

00:10:20And that's your position is you want the same kind of doctrine that we've applied in other contexts when we say an official has

00:10:27absolute immunity

00:10:29And my understanding is that when we say that we mean for their official acts, is that right?

00:10:36Yes. Okay, so any official acts but then in that world the real decision-making

00:10:42From the court standpoint is whether or not something is an official act or not, correct?

00:10:48That is an important determination by all means

00:10:50I mean, that's the determination in the absolute immunity world because if you determine that it's an official act

00:10:55Then the principle is that you get immunity for it, correct? That is correct

00:10:59All right

00:10:59So my question and I think the Chief Justice may have asked this at the beginning is how do you?

00:11:05Determine what or maybe Justice Thomas?

00:11:07How do you determine what is an official act and when we're talking about the kinds of scenarios that Justice Sotomayor brought up

00:11:14One could say that when the president is using the trappings of his office to achieve a personal

00:11:21Gain, then he's actually not acting officially even if the doctrine was absolute immunity

00:11:28So what do you say about that two things in response to that first to the last point?

00:11:32That allegation that this was really motivated by an improper private purpose could be made in every single case

00:11:38No, I understand that but but but it would have to be made

00:11:40I'm just trying to assess even if we had the doctrine of absolute immunity

00:11:45That same allegation and the facts related to it would come in

00:11:49Because the person would be arguing that he was not acting in his official capacity. He wasn't doing something official

00:11:56He was doing it personal, correct?

00:11:58I agree the the objective or I'm not sure I agree

00:12:01But but the point I would make response to that is in Fitzgerald against Nixon this court emphasized that that would result in an intrusive

00:12:09Discussion or determination of the president's personal motives for every official act and again

00:12:13This is not just in the case of the presidency

00:12:15All right

00:12:16Can I just ask you another another quick question before my colleagues take it over here at the beginning of your?

00:12:23Analysis when you were giving your opening statements you were talking about

00:12:27You know that you suggested that the lack of immunity and the possibility of

00:12:33Prosecution in the presidential context is like an innovation

00:12:37And I understood it to be the status quo

00:12:39I mean, I understood that every president from the beginning of time essentially

00:12:46has understood that there was a threat of prosecution and for no other reason than the

00:12:51Constitution suggests that they can be prosecuted after impeachment

00:12:55That you know

00:12:56the Office of Legal Counsel has said forever that presidents are amenable to a threat of prosecution and

00:13:02They have continued to function and do their jobs and do all the things that presidents do so it seems to me that you are

00:13:08Asking now for a change in what the law is related to

00:13:13Immunity, I would quote from what Benjamin Franklin said at the Constitutional Convention

00:13:18Which I think reflects best the founders original understanding and intent here

00:13:22Which is at the Constitutional Convention

00:13:25Benjamin Franklin said history provides one example only of a chief

00:13:30magistrate who is subject to public justice criminal prosecution and

00:13:34Everybody cried out against that as no I understand

00:13:37But since Benjamin Franklin everybody has thought including the presidents who've held the office that they were taking this office subject to potential

00:13:45Criminal prosecution no I don't I see the opposite

00:13:48I see all the evidence going the other way Marbury against Madison, Mississippi against Johnson discussed this broad immunity principle that natural

00:13:55So what was up with the pardon? What was up with the pardon for President Nixon? I think it

00:13:59If everybody thought that presidents couldn't be prosecuted then what was that about well?

00:14:04He was under investigation for both private and public conduct at the time official acts and private conduct

00:14:09I think everyone has properly understood that the president since like President Grant's carriage riding incident

00:14:14Everyone has understood that the president could be prosecuted counsel on private on that score you

00:14:20There does seem to be some common ground between the you and your colleague on the other side

00:14:25That no man's above the law and that the president can be

00:14:30Prosecuted after he leaves office for his private conduct. Is that right we agree with that and

00:14:36Then the question becomes as we've been exploring here today a little bit about how to segregate

00:14:41Private from official conduct that may or may not

00:14:45Enjoy some immunity, and we I'm sure we're gonna spend a lot of time

00:14:49exploring that

00:14:51But the DC Circuit in blazing game chief judge

00:14:55They're joined by the panel

00:14:59Express some views about how to segregate

00:15:02Private conduct for which no man is above the law from official acts

00:15:07Do you have any thoughts about the test that they came up with there?

00:15:10Yes, we think in the main that test especially if it's understood through the lens of judge

00:15:15Katz's his separate opinion is a very persuasive test

00:15:18It would be a great source for this court to rely on in drawing this line and it emphasizes the breadth of that test

00:15:24it talks about how

00:15:26Actions that are you know plausibly connected to the president's official duties are official acts and it also emphasizes that if it's a

00:15:33Close case or it appears there's considerations on other side that also should be treated as immune

00:15:38those are the the aspects of that that we'd emphasize as potentially guiding the and that's left open in that case the

00:15:44possibility of further proceedings and trial

00:15:48Exactly, right

00:15:49and that would be a very natural course for this court to take in this place the court can and should reverse the

00:15:54Categorical holding of the DC Circuit that there's no such thing as official acts

00:15:58Especially when it comes to but you'd agree further proceedings would be required

00:16:02That is correct

00:16:03There would have to be and I would point the court to Anderson against Creighton where the court said there'd be kind of two stages

00:16:07These further proceedings there's looking at the indictment itself or in that case

00:16:11It was a you know a complaint but look at the charging document itself and see whether on the face of it

00:16:16This is alleging official acts and if not, or it can't be determined

00:16:19Then there'd be a factual proceeding and all that under Mitchell against Forsyth and so forth would have to occur

00:16:24Before any other proceedings in the district

00:16:29Mr. Sarra you began by explaining why you believe that

00:16:35Immunity from criminal prosecution is essential for the proper functioning of the presidency

00:16:43but my question is whether the very robust form of

00:16:48Immunity that you're advocating is really necessary in order to achieve that result. So just to take one possible

00:16:56alternative suppose the rule were that a former president cannot be prosecuted for

00:17:04Official acts unless no plausible

00:17:08justification could be imagined for

00:17:12what the president did taking into account history and

00:17:17legal precedent and

00:17:19The information that was provided to the president at the time when the act was taken would that be sufficient or if it is

00:17:27Insufficient why would it be insufficient?

00:17:29That might be a much better rule than what emerged in the lower courts here

00:17:33We think it would be insufficient because again that long line of cases talking about

00:17:38using the president's motives and the intrusive sort of

00:17:42consideration of the president's motives as

00:17:45transforming acts to official and unofficial

00:17:47Would be would come into play and of course once you can make that allegation

00:17:51All of a sudden you've opened the door. You no longer have a per se clear bright Ryan rule

00:17:56You have a a determination in every single case. Well, what if it were not what if it did not involve any subjective element?

00:18:03It was purely objective

00:18:04You would look objectively at the various relevant factors

00:18:09that sounds to me a lot like blazing game and

00:18:13Especially viewed through the lens of Judge Katz's a separate opinion and that may not be different than what we're proposing to the court today

00:18:19Well blazing game had to do with the difference between official conduct and private conduct, right? That's correct. I'm sorry

00:18:25I understood the court to be asking that no this this would apply and just some possibility

00:18:30I don't know whether it's a good idea or a bad idea or whether it can be derived from the structure of the

00:18:35Constitution or the Veston Clause or any other

00:18:37Source, but this would be applied in a purely objective

00:18:42on purely objective grounds when the president invokes an

00:18:47Official power in taking the action that is that issue?

00:18:50Yes, I believe the reason I think of blazing game is because it talks about an objective context specific determination to winnow out

00:18:57What's official and what is purely private conduct and again in a with a strong degree of deference to it?

00:19:03I'm sorry, I if I understood justice Alito. He's suggesting not that

00:19:08He's suggesting whether

00:19:11Even if it is an official act

00:19:14Whether you still grant

00:19:17Immunity if that act is not plausibly

00:19:21viewed as

00:19:23within the realm of

00:19:26law

00:19:29He can correct me if I'm wrong, you know, that's that was the question

00:19:33That I think would be a superior rule than what it than the categorical denial that emerged in the trial court here

00:19:39I do think I'm not I'm not quite sure why he used the word plausible because that seems to

00:19:46Negate

00:19:50Might as well give absolute if you're saying plausible because anybody could argue

00:19:55plausibility

00:19:56We don't even require plausible. We require reasonable in qualified immunity. So well, I mean one might argue that it isn't

00:20:06plausibly legal to order

00:20:08Seal team six and I I don't want to slander seal team six because there are no seriously

00:20:14They're honorable. They're honorable

00:20:17Officers and they are

00:20:19Bound by the Uniform Code of Military Justice not to obey

00:20:23Unlawful orders, but no one I think one could say that it's not plausible

00:20:28That that is legal that that action would be legal and and I'm sure you thought I've thought of lots of hypotheticals

00:20:34I'm sure you've thought of lots of hypotheticals where a president could say I'm using an official power

00:20:39And yet the president uses it in an absolutely outrageous manner

00:20:44that if we're an objective determination may well be a

00:20:48Interesting approach to take so apply it to the allegations here. What is plausible about the president?

00:20:58insisting in creating a

00:21:01a

00:21:03fraudulent slate of electoral candidates

00:21:06Assuming you accept the facts of the complaint on their face

00:21:10Is

00:21:12That plausible that that would be within his right to do absolutely your honor

00:21:17I think we have the historical precedent we cite in the lower courts of President Grant sending federal troops to Louisiana and Mississippi in

00:21:241876 to make sure that the Republican electors got certified in those two cases which delivered the election to Rutherford B

00:21:29Hayes the notion that it's completely implausible

00:21:32I think just can't be supported based on the face of this indictment or even knowing that the slate is fake

00:21:38Knowing that the slate is fake that they weren't actually elected that they weren't certified by the state

00:21:46He knows all those things the indictment itself alleges. I dispute that characterization the indictment

00:21:52Fixes the word label to the so-called fraudulent lectures if it fixes the word fraudulent, but that's a complete mischaracterization on the face of the indictment

00:22:00It appears that there was no

00:22:01Deceit about who had emerged from the relevant state conventions and this was being done as an alternative basis

00:22:06but I want to address a more

00:22:08higher level point a fundamental point

00:22:11Which is that as Justice Alito's question indicated?

00:22:14There's a whole series of structural checks other than criminal prosecution that are designed to deter these kind of you know

00:22:22Outlandish scenarios are extraordinarily obviously illegal things and that's been viewed in this courts opinions going all the way back to at least

00:22:29Where do you think the DC Circuit went wrong in how it?

00:22:33Determined what was official versus what's personal?

00:22:36Well, I read I read the opinion below in this particular case as adopting a categorical view

00:22:42It does not matter is that the logic of their their opinion because there is no immunity for official acts and therefore

00:22:49You know, that's the end of the story. I don't really think they went wrong in blazing game in the civil context when they engage

00:22:55in the same

00:22:57Determination with respect to what's official and what isn't official there

00:23:00We agree with most of what that opinions and for some official acts that are not within the article to exclusive power

00:23:07And so official acts but not within the article to exclusive power

00:23:12Even for those I assume you would think that a clear statement has to be

00:23:19Required a clear statement in the statute covering the president if the president's official acts are going to be criminalized

00:23:26Absolutely, obviously the issue is you know at the highest possible level when it comes to the unrestrictible powers like as in this indictment the

00:23:34Well, I'm assuming the exclusive powers are walled off and can't be prosecuted before

00:23:40There's a lot of official powers that are not exclusive to the president under his article to authority

00:23:46But for those I understood you to be saying at a minimum there would need to be a clear statement in the statute

00:23:53Referencing the president so that the president's on notice and can

00:23:59Conduct himself or herself accordingly. That's absolutely correct

00:24:02And that'd be consistent both with Franklin and public citizen in cases along series of other clear state

00:24:09Go ahead

00:24:10So you concede that private acts don't get immunity we do okay

00:24:14So in the special counsel's brief on pages 46 and 47

00:24:19He urges us even if we assume that there's even if we were to decide or assume that there was some sort of immunity

00:24:25for official acts

00:24:26that there were sufficient private acts in the indictment for the trial to go for the case to go back in the trial to begin

00:24:32Immediately and I want to know if you agree or disagree about the characterization of these acts as private

00:24:38Petitioner turned to a private attorney was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results

00:24:45Private as at lunch

00:24:46I mean we dispute the allegation but private sounds private petitioner conspired with another private attorney who caused the filing in court of a

00:24:54Verification signed by petitioner that contained false allegations to support a challenge that also sounds private

00:24:59three private actors two attorneys including those mentioned above and a political

00:25:04consultant helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification

00:25:10Proceeding and petitioner and a co-conspirator attorney directed that effort

00:25:14You read it quickly, I believe that's private

00:25:17I don't want to so those acts you would not dispute those were private and you wouldn't raise a claim that they were official as

00:25:22characterized

00:25:23We would say your honor if I may

00:25:24What we would say is official as things like meeting with the Department of Justice to deliberate about who's going to be the acting?

00:25:30Attorney general the United States communicating with the American public communicating with Congress about matters of enormous. Thank you. Thank you

00:25:38Thank You counsel and what is the consequence in terms of going forward with your

00:25:44Acknowledgement that those are private acts as opposed to official acts. If you look at the if you look at the the indictment here

00:25:50There's a bunch of acts that we think are just clearly official

00:25:53There may be allegations that mostly relate to what the government has described here as private aim or private end

00:25:58And the court should remand or address itself but remand for a Brewster like determination

00:26:04Which is what's official and what's private the official stuff has to be expunged completely from the indictment

00:26:09Before the case can go forward and there has to be a determination at least on remand of what's official a two-stage

00:26:16Determination and what's official and what's private? Well, if you expunge the official part from the indictment, how do you I mean, that's like a

00:26:22one-legged

00:26:23Stool, right?

00:26:24I mean

00:26:25Giving somebody money isn't bribery unless you get something in exchange and if what you get in exchange is to become the ambassador to a

00:26:31particular country

00:26:33That is official the appointment that's within the president's prerogatives

00:26:37The unofficial part is I'm going to get a million dollars for it. So if you say you have to expunge

00:26:43The official part, how does that go forward?

00:26:46This particular indictment when we say virtually all the overt conduct is official. We don't believe it would be able to go forward

00:26:52I mean there could be a case where it would

00:26:53but if you look at even the government's brief in this case divides up the indictment into things that other than the

00:27:00electors

00:27:02allegations don't really

00:27:05Are they haven't disputed that they are official acts, but what they do is say well

00:27:08We tie it all together

00:27:10By characterizing it as done and these are the allegations that the court just referred to by an improper private aim or private end

00:27:17Again, that's their words and that just runs loggerheads, you know dead set against this court's case

00:27:22I was saying you don't look at when immunity determinations the the the motive improper motivation or purpose. Thank you justice Thomas

00:27:32In assessing the

00:27:35Official acts of a president. Do you differentiate between the president acting as president and the president?

00:27:43acting as candidate

00:27:45Yes, we do and we don't dispute essentially the blazing game discussion of that

00:27:50Okay, that has to be done by objective determinations not by looking at what was the purpose of what you did this

00:27:56That's the most important point there. Did you?

00:27:59In this litigation challenge the appointment of special counsel

00:28:03Not directly we have done so in the Southern District of Florida case

00:28:07And we totally agree with the analysis provided by Attorney General Meese and Attorney General new Casey

00:28:12And it points to a very important issue here because one of their arguments is of course that

00:28:17You know, we should have this presumption of regularity that runs into the reality that we have here an extraordinary prosecutorial power

00:28:25being exercised by someone who has never

00:28:28Nominated by the president or or or confirmed by the Senate at any time. So we agree with that position

00:28:34We hadn't raised it yet in this case when this case went up on appeal

00:28:39Justice Alito

00:28:40When you say that the official act should be expunged from the indictment that in itself would not achieve very much unless

00:28:50Evidence of those official acts were precluded at trial

00:28:53so is that what you're saying that the prosecution should not be permitted at trial to prove the official acts as part of the

00:29:01conspiracies that are alleged

00:29:03Absolutely, and we think that's just the clear implications of Brewster and Johnson and their discussion. That's very very analogous context. Thank you

00:29:11I'm a little bit confused by that

00:29:14If you have a scheme to defraud

00:29:18Or scheme to accept bribery

00:29:21There's evidence from which you can infer that scheme and one of it is that the appointment actually happened

00:29:27It's an official act. You wouldn't expunge that as

00:29:31Evidence you would instruct the jury that there's no liability for

00:29:37The actual appointment that the liability is for accepting the bribe

00:29:43Similarly here, I don't think the indictment is charging that the obstruction

00:29:50occurred solely because of

00:29:53conversations with the Justice Department

00:29:56they're saying you look at all of the private acts and

00:30:00You look in the context of some of the public acts and you can infer

00:30:06the

00:30:07intent the private intent

00:30:10From them, so I'm not sure that I understand why your problems

00:30:16Couldn't be taken care of at trial with an instruction if we believe if the court were to find

00:30:22I'm not even sure how they could but if it were to find

00:30:26that some public acts could not be the basis of

00:30:31criminal liability, I

00:30:33Think the best thing I can say to that

00:30:35Is and I think this ties into the Chief Justice's question about a one-legged stool

00:30:40Brewster and Johnson and subsequent cases like Keltowski versus Meaner

00:30:44Essentially say that that this is a one-legged stool problem

00:30:48It will be difficult for some of these prosecutions to proceed and that is the implications of official immunity

00:30:53Which is dictated in the Constitution here by the executive vesting clause

00:30:56I

00:31:00Continue on in Justice Barrett's vein a little bit and ask you about some of the allegations of the indictment and

00:31:06Whether their official acts are not in your view

00:31:09So the defendant signed a verification affirming false election fraud allegations

00:31:15Made on his behalf and a lawsuit filed in his name against the Georgia government governor

00:31:20I don't think we've disputed that that's official. I'm sorry that that is unofficial that that's unofficial

00:31:26Same for the defendant called the chairwoman of the Republican National Committee asked her to gather electors in

00:31:33targeted states falsely

00:31:35Represented to her that such electors votes would be used only if ongoing litigation in one of the states changed the results in the defendant's

00:31:42Favor we have taken the position that that is official. That's official. Yes

00:31:46Why would that be official because the organization of alternate slates of electors is for based on for example the historical?

00:31:53Example of President Grant is something that was done pursuant to an ancillary and preparatory to the exercise of the core

00:32:01Recommendation clause power. So in present couldn't he have taken this action just in the status of a candidate?

00:32:08The fact that he could have done so doesn't demonstrate that he did do so in this case and based on the allegations

00:32:13We think it's clear. He did not that this was done in an official capacity

00:32:17The defendant asked the Arizona House speaker to call the legislature into session

00:32:22To hold a hearing based on their claims of election fraud

00:32:25Absolutely an official act for the president to communicate with state officials on a matter of enormous federal interest and concern

00:32:31Attempting to defend the the integrity of a federal election to communicate with state officials and urge them to view what he views as their

00:32:38job

00:32:40Under state law and federal law. That's an official act. Well attempting to defend the integrity of the election

00:32:45I mean, that's the defense the allegation is that he was attempting to overthrow

00:32:51an election

00:32:53Essentially exactly right in neither allegation of what the purpose is should make it a terminate

00:32:57It should make a difference as to whether it's immune that is extremely strong precedent from this court. Does it?

00:33:04Does it strike you as odd that your understanding of?

00:33:09Immunity goes way beyond what OLC has ever claimed for the former president

00:33:15I do the OLC opinions here is strongly supporting us because anytime a congressional statute basically got anywhere near

00:33:21Touching the president's prerogatives. They've said oh, we're gonna interpret the statute narrowly to avoid that. Well, that's a different question

00:33:27I mean what OLC has always said is that sitting presidents get immunity, but former presidents

00:33:34No now there might be a

00:33:38Different argument made about whether a statute or whether a statute has applied to particular conduct

00:33:44is is is

00:33:46properly

00:33:48Available against the president, but that's a very different argument than the immunity claim that you are making here

00:33:55Which OLC has definitively not supported. I don't I don't know if I put it that way

00:34:00I don't recall an opinion directly addressing it

00:34:02but more fundamentals of us your honor is in fact the language of cases like Marbury and

00:34:08Statements like made by Benjamin Franklin at the Constitutional Convention statements of George Washington talking about the

00:34:15Massive risk of factional strife and how that could destroy the Republican erect a new government on the ruins of public liberty

00:34:21That's what we rely on principally here

00:34:23I cite the OLC opinions visit because of course what you see there is a very strong trend that if there's any

00:34:29Statute that might trench in any way on the president's prerogatives, which they adopt they interpret it to avoid that

00:34:36If a president sells nuclear secrets to a foreign adversary is that

00:34:42Immune that sounds like similar to the bribery example likely not immune now if it's structured as an official act you would have to be

00:34:48Impeached and convicted first before what does that mean if it's structured as an official act well?

00:34:53I don't know in the hypothetical whether or not that would be an official act you probably have to have more details to apply the

00:34:58blazing game

00:35:00Analysis or even the Fitzgerald analysis that we've been talking about how about if a president?

00:35:05orders the military to stage a coup I

00:35:11Think that as the chief justice pointed out earlier where there is a whole series of you know sort of

00:35:18Guidelines against that so to speak like the UCM Jade

00:35:21Prohibits the military from following a plainfully unlawful act if one adopted justice Alito's test that would fall outside

00:35:27Now if one adopts for example the Fitzgerald test that we advance that might well be an official act and you would have to be

00:35:33As I'll say in response to all these kinds of hypotheticals

00:35:36Has to be impeached and convicted before it can be criminally prosecuted, but I emphasize to the court well

00:35:41He's gone. Let's say this president who ordered the military to stage a coup. He's no longer president. He wasn't impeached

00:35:48He couldn't be impeached

00:35:50but

00:35:51But he ordered the military to stage a coup and you're saying that's an official act

00:35:55I think it would that's immune

00:35:57I think it would depend on the circumstances whether it was an official act if it were an official act again

00:36:03What does that mean depend on the circumstances? He was the president he

00:36:07Is the commander-in-chief?

00:36:10He talks to his generals all the time, and he told the generals. I don't feel like leaving office

00:36:16I want to stage a coup is is that immune if it's an official act there needs to be impeachment and conviction beforehand because the

00:36:23Framers viewed the risk that kind of

00:36:26Isn't an official act if it's an official act it's a piece it an official on the way you've described that hypothetical

00:36:33It could well be I just don't know you'd have to again

00:36:36It's a fact specific context specific determination that answer sounds to me as though. It's like yeah under my test

00:36:42It's an official act, but that sure sounds bad doesn't it well

00:36:45It certainly sounds very bad

00:36:46And that's why the framers have and that's why the framers have a whole series of structural checks that have

00:36:52successfully for the last

00:36:53234 years

00:36:55Prevented that very kind of extreme hypothetical and that is the wisdom of the framers what they viewed as the risk that needed to be

00:37:02Guarded against was not the notion that the president might escape you know a criminal prosecution for something

00:37:08You know sort of very very unlikely in these unlikely scenarios

00:37:11They viewed much more likely and much more destructive to the Republic the risk of factional strife discussed by George Washington

00:37:16Framers did not put an immunity clause into the Constitution. They knew how to there were immunity clauses in some state constitutions

00:37:24They knew how to give legislative immunity

00:37:26They didn't provide immunity to the president and you know not so surprising

00:37:31They were reacting against a monarch who claimed to be above the law

00:37:35Wasn't the whole point that the president was not a monarch and the president was not supposed to be above the law

00:37:41I would say two things in response to that

00:37:44Immunity they did put in immunity clause and in a sense they put in the executive vesting clause which was originally understood to had to

00:37:51adopt a broad immunity principle that set forth in the very broad language of Marbury against Madison and

00:37:57Also, they did discuss and consider what would be the checks on the presidency and they did not say oh

00:38:03We need to have criminal prosecution right there at the Constitutional Convention Benjamin Franken says we don't have that that's not an option

00:38:09Everybody cried out against that as unconstitutional

00:38:12The structural check were adopting his impeachment and the very clear on that in pages 64 to 69 of the second volume of Farron. Thank you

00:38:20justice Gorsuch

00:38:21Just returning to the Chief Justice's hypothetical about the ambassador sale and bribery

00:38:29Congress has a statute that

00:38:31specifically names the president and says he can be

00:38:35Criminally prosecuted for bribery presumably after he leaves office

00:38:43Outside the core areas that that Justice Kavanaugh was talking about when Congress speaks clearly

00:38:50Couldn't a statute like that Congress provide a statute like that that would allow

00:38:56All manner of evidence to come in to prove the case

00:38:59I

00:39:00Think our position is that would have to be an unofficial act purely private conduct for that prosecution to go forward

00:39:07All right

00:39:07But but outside the core areas of executive power if there is a clear statement from Congress that something is unlawful

00:39:14And it applies to the president. I'm struggling to see why in that case perhaps

00:39:22The evidence could come in. Yeah, the strongest possible case in our view is what you've described as kind of the core executive powers

00:39:29the unrestrictable powers within the meaning of SELA law

00:39:31But again the holding of for example Brewster and Johnson that we've relied on doesn't turn on how central it is of an

00:39:38Legislative act it just has if it's an official act which here

00:39:41We would say is applies basically the outer perimeter test of Fitzgerald against Nixon that doesn't come in

00:39:47What would happen if presidents were under?

00:39:50fear fear that their successors

00:39:53would criminally prosecute them for their acts in office whether it's

00:39:58Whether they're engaged in drone strike you all the hypotheticals. I'm not going to go through them

00:40:03It seems to me like one of the incentives that might be created is for presidents to

00:40:07Try to pardon themselves

00:40:10Do you have any thoughts about that? That is I didn't think of that until your honor acid

00:40:15That is certainly one incentive that might be creative where we think it's most important. We've never answered whether a president can do that

00:40:23Happily it's never been presented to us and if if the doctrine of immunity remains in place that's likely to remain the case

00:40:30For those very issues as Fitzgerald

00:40:32I think very powerfully emphasized the real concern here is is there going to be bold and fearless action is the president gonna have to make

00:40:39A controversial decision whereas political opponents are going to come after him the minute

00:40:43He leaves office is that gonna unduly deter is that going to dampen the order of that?

00:40:48President to do what our constitutional structure demands of him or her which is bold and fearless action in the face of controversy

00:40:55And perhaps if he feels he has to he'll pardon himself

00:40:59Every every four years from now on but that as the court pointed out wouldn't provide the security because the legality of that is something

00:41:06That's never been addressed now one of the checks and balances in addition to

00:41:10Impeachment that you've discussed is subordinate liability

00:41:14You don't contest that everybody following an unlawful order beneath the president of the United States can be

00:41:22Immediately prosecuted do you?

00:41:24I'm sorry. This court is asking whether they the president gives an unlawful order

00:41:29Call in the troops what all the examples we've heard

00:41:33It every subordinate beneath him faces criminal prosecution don't they?

00:41:38That is what Gouverneur Morris said explicitly at the Constitutional Convention that his co agitators could be prosecuted

00:41:44there is an important caveat because of course there would have to be a

00:41:49Statute that would govern that for them to be prosecuted. We've got lots of statutes the criminal law books are replete

00:41:55but I mean

00:41:57Do you agree is that one check that's available?

00:42:01Absolutely, and again the only caveat that I was making is if that statute

00:42:05Was doing what Marbury says you can't do which is going after the subordinates to restrict for example a core executive function

00:42:12The Franklin clear statement rule might be triggered and that you might not be able to go after that present

00:42:17So I don't think Congress can say well

00:42:18we can't go after the president directly but we're going to criminalize the way that the president speaks to Congress under the exercise of the

00:42:24Recommendations clause and therefore we're going to put in a criminal statute that says if you provide false information to Congress

00:42:31In carrying out the president's recommendation powers you you can be immediately prosecuted that would at least be a very difficult question

00:42:36but the fundamental point of drawing that distinction between the president himself and his co agitators in the word of Gouverneur Morris the

00:42:43Constitutional Convention is an excellent distinction

00:42:47Justice Kavanaugh follow up on the OLC opinions question

00:42:52As you read them, and I think I read them they articulate a clear statement rule as to this courts cases

00:42:59for covering official acts and

00:43:02Your point I think but I just want to underscore this is that none of the statutes alleged here or cited here have a clear

00:43:10statement covering the president therefore meaning that the president

00:43:15Can't be charged for any official acts under this under these statutes. That's absolutely correct. They're extended way beyond

00:43:22I mean, that's separate from the question. What's official versus what's personal but for that bucket that is official

00:43:27There's no clear statement

00:43:29Period that's right and as to purely private conduct

00:43:32We don't think that clear statement rule would be invoked but as to official acts

00:43:36these statutes the ones charged in the indictment are just

00:43:40Way far afield from purporting to criminalize in clear terms the president's official acts and then

00:43:46You're just to clarify this the the president's not above the law the president's not a king

00:43:53The founders thought that I think your point in response to that is the president is subject to

00:44:00Prosecution for all personal acts just like every other American for personal acts the question is

00:44:06Acts taken in an official capacity

00:44:08That's correct

00:44:09And even those of course if there was an impeachment conviction could be prosecuted in our view and we'd emphasize the whole series of structural

00:44:15checks in addition to that

00:44:17Which deter those and have successfully deterred presidential misfeasance for 234 years

00:44:23Then on the source of immunity, it's not explicit in the Constitution, but also

00:44:29Executive privilege is not explicit in the Constitution yet in United States versus Nixon the court unanimously said

00:44:35that the article to executive power in the

00:44:39Constitution encompassed executive privilege and the same principle presumably would apply

00:44:44To executive immunity being encompassed within that executive power is historically understood

00:44:50That's absolutely correct

00:44:51And there's a very telling passage in free enterprise fund where this court talked about how there's a letter from James Madison to Thomas Jefferson

00:44:58At the time of the founding where Madison said hey the rest of the removal power

00:45:02They did not expressly take this away, so the 1789 Congress understood that it was left in place

00:45:07So if the original understanding of the executive vesting clause is broad enough to encompass that it would have to be expressly taken away

00:45:14Which is the opposite of the presumption that they're advancing here?

00:45:17And then lastly I think you've acknowledged in response to others questions that some of the acts and the indictment are

00:45:24Private and your view is that some are official is it your position then that that?

00:45:31Analysis of which is which should be undertaken in the first instance by the DC Circuit or the district court

00:45:37Most likely a district court under the logic of Anderson

00:45:40Thank you

00:45:41justice Barrett

00:45:43So mr. Sauer you've argued that the impeachment clause

00:45:47Suggests or requires impeachment to be a gateway to criminal prosecution, right?

00:45:52Yes, I think that's the plain meaning of that second phrase in the clause okay

00:45:56So there are many other people who are subject to impeachment including the nine sitting on this bench

00:46:01And I don't think anyone has ever suggested that

00:46:05Impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment

00:46:11So why is the president different when the impeachment clause?

00:46:14Doesn't say so someone very important has made the opposite suggestion as to the president himself

00:46:20Which is Solicitor General Bork which is reaffirmed in the OLC opinions on this where that where Solicitor General Bork in?

00:46:271973 as to the issue of the vice president reviewed the historical materials

00:46:31And he said the sequence is mandatory only as to the president that is DOJ's view of the original understanding of the impeachment judgment clause

00:46:38Which is exactly our position the sequence is mandatory only as to the president keep in mind that the criminal prosecution of a president

00:46:45president prior to impeachment

00:46:47Contradicts in our view the plain language of the Constitution

00:46:50But also hundreds of years of history and what DOJ admits is the framers intent

00:46:55And so we say that that practice whatever its validity should not be extended at this novel context where it clashes with the Constitution

00:47:02Criminal conduct isn't discovered until after the president is out of office

00:47:07So there was no opportunity for impeachment

00:47:09We say the framers assume the risk that of under enforcement by adopting these very structural checks as Justice Scalia said in Morrison against

00:47:16Olsen the separation of powers

00:47:18Prevents us from writing every wrong, but it does so that we do not lose liberty

00:47:22Okay

00:47:22And and the special counsel makes a point that I think is a pretty compelling one you admit that if the president were

00:47:29Successfully impeached that he could be criminally prosecuted after impeachment, right?

00:47:34Assuming the prosecution was for the same conduct of which he was convicted not impeached

00:47:38He must be convicted that word conviction is right there in the clause. Okay granted

00:47:43But you also say that these criminal statutes

00:47:46Unless they explicitly mentioned the president don't apply to him

00:47:50So, how can you say that he would be subject to prosecution after impeachment while at the same time saying that he's exempt from these

00:47:58Criminal statutes. Well, there are statutes as they concede where president Congress has purported to you two or three

00:48:04They haven't done a comprehensive review. I think it looks like all they did was text search for president in 18 US Code

00:48:10Again under Franklin, that's a very telling indication that the word president is not in the statute

00:48:14Is it necessarily a a magic word requirement so to speak but more fundamentally than that more fundamentally that they concede

00:48:21There are statutes that exist in addition to that much impeachment could occur as a result of private conduct

00:48:27so the impeachment judgment clause does do significant work by

00:48:31authorizing the subsequent prosecution of a president there because what the framers if you look at

00:48:35What they're discussing in the things prayer in the Constitutional Convention is principally concerns about private conduct

00:48:40Which of course we can see they're not immune. Okay, so just pick up justice Kagan's example of a president who orders a coup

00:48:47Let's imagine that he is impeached and convicted for ordering that coup and let's just accept for the sake of argument your position that that

00:48:54Was official conduct you're saying that he couldn't be prosecuted for that

00:48:58Even after conviction and an impeachment proceeding if there was not a statute that expressly

00:49:05Referenced the president and made it criminal for the president

00:49:09There would have to be a statute that made a clear statement that Congress purported to regulate the president's conduct. Okay. Thank you

00:49:16justice Jackson

00:49:18So I think I now understand better your position

00:49:22In in your discussions with

00:49:24Justice Kavanaugh it became clear that you are saying that for the private acts of a president

00:49:30There's no immunity, but for the official acts the president there is immunity. Is that your position? I agree with that. All right

00:49:38So one thing that occurs to me is that this sort of difficult line drawing problem that we're having with all of these

00:49:46Hypotheticals is this a private act or a public act?

00:49:49Is being necessitated by that assumption because of course if

00:49:55Official acts didn't get absolute immunity, then it wouldn't matter

00:49:59We wouldn't have to identify which are private and which are public correct that in fact is the approach of the DC Circuit

00:50:05There's no determination that needs to be right, but I'm just I'm just making so to the extent

00:50:09We're worried about like how do we figure out whether it's private or public we have to we have to understand that we're only doing

00:50:14That because of an underlying assumption that the public acts get immunity, so let me explore that assumption

00:50:22Why is it as a matter of theory, and I'm hoping you can sort of zoom way out here that the president?

00:50:30Would not be required to follow the law when he is performing his official acts everyone else

00:50:37Everyone else there are lots of folks who have very

00:50:40High powered jobs who make a lot of consequential decisions

00:50:44And they do so against the backdrop of potential criminal prosecution if they should

00:50:51break the law in that

00:50:54Capacity and we understand and we know as a matter of fact that the president United States has the best lawyers in the world

00:51:02When he's making a decision

00:51:04He can consult with pretty much anybody as to whether or not this thing is criminal or not so why?

00:51:11Would we have a situation in which we would say that the president should be making official acts without any?

00:51:20Responsibility for following the law I respectfully disagree with that characterization the president absolutely does have responsibility

00:51:26He absolutely is required to follow the law in all of his official acts

00:51:31But the remedy for that is the question could he be subject to personal vulnerability sent to prison

00:51:37But making a bad decision after he leaves office

00:51:39But but other people who have consequential jobs and who are required to follow the law make those

00:51:46Determinations against the backdrop of that same kind of risk, so what is it about the president?

00:51:51I mean I've heard you say it's because the president has to be able to act boldly do you know make?

00:51:59Kind of consequential decisions, I mean sure but again

00:52:03There are lots of people who have to make life-and-death

00:52:06Kinds of decisions and yet they still have to follow the law and if they don't they could be sent to prison etc. Etc

00:52:12So I say two things in response to that was from Fitzgerald. That's the very

00:52:17Sort of inference or reasoning at this court rejected in Fitzgerald no

00:52:20But let me just Fitzgerald was a civil situation in which the president actually was in a different position

00:52:27Than other people because of the nature of his job the high-profile nature and the fact that he touches so many different things

00:52:34When you're talking about private civil liability, you know anybody on the street can sue him

00:52:39We could see that the president was sort of different than the ordinary person when you say should he be immune from?

00:52:45Civil liability from anybody who wants to sue him, but when we're talking about criminal liability

00:52:50I don't understand how the president stands in any different position

00:52:54With respect to the need to follow the law as he is doing his job than anyone else

00:52:59He is required to follow the law and what he's not if there's no criminal process if there's no threat of criminal prosecution

00:53:05What prevents the president from just doing whatever he wants all the structural checks that are identified in Fitzgerald and a whole series of this

00:53:12Court's cases that go back to Martin against Mott for example impeachment

00:53:16oversight by Congress

00:53:17Public oversight, there's a long series that Fitzgerald directly addresses this in the civil context and we've actually poured

00:53:24I'm not sure that's that that that's much of a backstop and what I'm I guess

00:53:29More worried about you seem to be worried about the president being chilled

00:53:32I think that we would have a really significant opposite problem

00:53:36if the president wasn't chilled if someone with

00:53:40Those kinds of powers the most powerful person in the world with the greatest amount of authority

00:53:47Could go into office knowing that there would be no

00:53:51potential penalty for committing crimes

00:53:55I'm trying to understand what the disincentive is from turning the Oval Office into

00:54:01You know the the seat of criminal activity in this country

00:54:05I don't know if there's any allegation of that in this case in what George Washington said is

00:54:09What Benjamin Franklin said is we view the prosecution of a chief executive is something that everybody cried out against is unconstitutional

00:54:15And what George Washington said is we're worried about

00:54:18Factional strife, which will know I'm also let me let me let me put this worry on the table if the potential for criminal liability

00:54:25Is taken off the table

00:54:27Wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with?

00:54:34Abandoned while they're in office. It's right now the fact that we're having this debate because

00:54:41OLC has said that presidents might be prosecuted

00:54:44Presidents from the beginning of time have understood that that's a possibility

00:54:48that might be what has kept this office from turning into the kind of

00:54:53Crime center that i'm envisioning. But once we say

00:54:57No criminal liability, Mr. President. You can do whatever you want

00:55:01I'm worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he's in office

00:55:09I respectfully disagree with that because

00:55:12The regime you've described is the regime we've operated under for 234 years

00:55:16There has not been an expectation based on 234 years of unbroken political

00:55:22Let me ask you another question about this clear statement

00:55:26Line of questioning first of all, I I didn't see you argue that below

00:55:31I don't know. I understand that you have that set of in your briefs here

00:55:34But did you argue before the dc circuit something about a clear statement with respect to statutes?

00:55:40Yes, uh in our separately filed motion for motion dismissed based on statutory grounds

00:55:45We extensively argued not just this clear statement rule, but a whole panel

00:55:48Right, but that's not that's not the question presented in this case

00:55:50The question presented in this case comes out of your motion for immunity

00:55:54So to bring in now an argument that you didn't raise below it seems to me you forfeited it

00:55:59No, I believe it's fairly included within the question presented

00:56:03Especially because the court expanded the question presented from what either the party submitted but not to statutory interpretation

00:56:09I mean that that argument goes to statutory avoidance

00:56:13um, you know

00:56:15Constitutional avoidance statutory interpretation you asked for immunity, which is a totally different thing

00:56:20I think they're very closely related logically

00:56:23The question is is does immunity exist and to what extent does it and the argument is?

00:56:28Immunity at least exists to the extent that it raises a grave constitutional question that triggers the clear statement rule

00:56:33That's a really that's totally circular

00:56:35You you you use that argument to avoid constitutional questions you are asking us a constitutional question here

00:56:43So it doesn't even make sense to talk about clear statement and rule

00:56:47The way that it's come up in the context of an immunity question, but let me just let me ask you this

00:56:54about it

00:56:56One more question. Um

00:56:58So

00:57:01Yeah, so what what is the argument that the president the united states who you say is bound by the law is not on notice

00:57:09That he has to do his job consistent with the law

00:57:12I mean to the extent the clear statement rule comes in at all. It's about the person not being on notice

00:57:17So I I guess I don't understand why congress in every criminal statute would have to say and the president is included

00:57:25I thought that was the sort of background understanding that if they're enacting a generally applicable criminal statute

00:57:30It applies to the president just like everyone else

00:57:33So so what is the clear statement that would have to be made in this context under franklin and under public citizen?

00:57:40Congress has to speak clearly before it interferes with the president's powers and we have here an indictment that seeks to criminalize

00:57:47Objective conduct that falls within the heartland of core executive authority. Thank you

00:57:53Thank you council

00:57:57Mr. Dreeben

00:57:59Mr. Chief justice and may it please the court

00:58:02This court has never recognized absolute criminal immunity for any public official

00:58:09Petitioner, however claims that a former president has permanent criminal immunity for his official acts

00:58:16Unless he was first impeached and convicted

00:58:20His novel theory would immunize former presidents for criminal liability for bribery treason sedition

00:58:27murder

00:58:28And here conspiring to use fraud to overturn the results of an election and perpetuate himself in power

00:58:37Such presidential immunity has no foundation in the constitution

00:58:41The framers knew too. Well the dangers of a king who could do no wrong

00:58:46They therefore devised a system to check abuses of power

00:58:51Especially the use of official power for private gain

00:58:55Here the executive branch is enforcing congressional statutes and seeking accountability

00:59:02For petitioners alleged misuse of official power to subvert democracy

00:59:08That is a compelling public interest

00:59:11In response petitioner raises concerns about potential abuses

00:59:17But established legal safeguards

00:59:19Provide layers of protections with the article 3 courts providing the ultimate check

00:59:26The existing system is a carefully balanced framework

00:59:30It protects the president

00:59:33But not at the high constitutional cost of blanket criminal immunity

00:59:38That has been the understanding of every president from the framing

00:59:42Through Watergate and up to today

00:59:45This court should preserve it

00:59:47I welcome the court's questions

00:59:50Uh, Mr. Dreeben, uh, does the president, uh have immunity, uh, or

00:59:56Uh, are you saying that there's no immunity presidential immunity even for official acts?

01:00:03Yes, Justice Thomas, but I think that it's important to put in perspective

01:00:08The position that we are offering the court today

01:00:11Uh, the president as the head of the article 2 branch

01:00:17Can assert as applied article 2 objections to criminal laws

01:00:22That interfere with an exclusive power possessed by the president or that prevent the president from accomplishing

01:00:29his constitutionally assigned functions

01:00:32That is the constitutional doctrine that currently governs the separation of powers

01:00:38What petitioner is asking for is a broad blanket immunity that would protect the president a former president

01:00:46from any criminal exposure

01:00:48Absent impeachment and conviction which has never happened in our history and we submit that is not necessary

01:00:56In order to assure that the president can perform all of the important tasks that the constitution reposes in him

01:01:04over

01:01:05in not so distant past, uh, the presidents or certain presidents have engaged in

01:01:14Various, uh activity coups or

01:01:20Operations like operation mongoose when I was a teenager

01:01:25And yet there were no prosecutions

01:01:29Why

01:01:30If you if what you're saying is right, it would seem that that would have been ripe for uh criminal prosecution of someone

01:01:39So justice thomas, I think this is a central question. The reason why

01:01:44There have not been prior criminal prosecutions

01:01:47Is that there were not crimes and I want to explain why there are layers of safeguards

01:01:53That assure that former presidents do not have to lightly assume

01:01:58criminal liability for any of their official acts

01:02:01At the outset, there is a statutory construction principle that is applicable here

01:02:07It arises when there is a serious constitutional question

01:02:11About applying a criminal statute to the president's acts

01:02:15It is not and i'm sure that we will discuss this that no statute can apply to the president in his official capacity

01:02:22Absent a designation of the president in it, but there is a principle that if there is a serious constitutional question

01:02:29Courts will strive to construe the statute so that it does not apply to the president

01:02:35In addition to that the president I think has been mentioned earlier has access to advice from the attorney general

01:02:43And it would be a due process problem to prosecute

01:02:47A president who received advice from the attorney general that his actions were lawful

01:02:53absent the kind of collusion or conspiracy

01:02:56That itself represented a criminal violation, which I don't really see

01:03:01As being a realistic option and then if I could say one more thing because you raised the question about

01:03:07Potential overseas taking of life and the office of legal counsel has addressed this quite specifically

01:03:14There is a background principle of criminal law called the public authority

01:03:19exception to liability and it is read into federal law unless congress takes specific action to

01:03:27Oust it which it never has done as far as I am aware

01:03:30And in a case in which the president sought to engage in overseas activity that would result in the taking of life

01:03:38Olc did not say the federal murder statute doesn't apply

01:03:42That would be the the thrust of my friend's argument on clear statement

01:03:47Instead olc went through an extensive analysis on why the public authority

01:03:53Defense would prevent it from being considered a violation of law to go after a terrorist for example

01:04:01The court of appeals below whose decision we're reviewing said

01:04:05Quote a former president can be prosecuted for his official acts

01:04:10Because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws

01:04:17Do you agree with that statement?

01:04:20Well, I think it sounds

01:04:22tautologically true, but I I want to underscore that

01:04:26the

01:04:27Obligation of a president is to take care that the laws are faithfully executed. Well the

01:04:33I think it sounds tautologically true as well. And that I think is the clearest statement of the court's holding

01:04:40Which is why it concerns me it as I read it

01:04:42It says simply a former president can be prosecuted because he's being prosecuted

01:04:48Well, I would not suggest that that's either the proper approach in this case or certainly not the government's approach

01:04:56A prosecution does of course invoke

01:04:59a federal criminal law

01:05:02The allegations have to be presented to a grand jury which votes upon the indictment

01:05:08Well, that's what I I mean shortly after that statement in the court that court's opinion

01:05:12That's what they said

01:05:13But there's no reason to worry because the prosecutor will act in good faith

01:05:17And there's no reason to worry because a grand jury will have returned the indictment

01:05:21now, you know how easy it is in many cases for a prosecutor to get a grand jury to

01:05:27Bring an indictment and reliance on the faith good faith of the prosecutor

01:05:32may not be

01:05:34enough in the

01:05:35Some cases i'm not suggesting here

01:05:39So if it's tautological and those are the only protections

01:05:43That the court of appeals below gave and that is no longer your position. You're not defending that position

01:05:50why shouldn't we either send it back to the court of appeals or

01:05:54Uh issue an opinion making clear that that's not the law

01:05:58Well, I I am defending the court of appeals judgment and I do think that there are layered safeguards

01:06:04That the court can take into account that will ameliorate concerns

01:06:08About unduly chilling presidential conduct that concerns us

01:06:12We are not endorsing a regime that we think would expose former presidents to criminal prosecution

01:06:19In bad faith for political animus without adequate evidence

01:06:24A politically driven prosecution would violate the constitution under weight versus united states

01:06:30It's not something within the arsenal of prosecutors to do prosecutors take an oath. The attorney general takes an oath. So

01:06:39Well, I don't want to overstate

01:06:42Your honor's concern with potentially relying solely on good faith

01:06:46But that's an ingredient and then the courts stand ready to adjudicate motions based on selective prosecution

01:06:54political animus

01:06:55This court relied on

01:06:57Those very protections in the vance case just two years ago

01:07:01but what can what concerns me is as you know, the court of appeals did not get into a

01:07:07Focused consideration of what acts we're talking about or what documents we're talking about

01:07:12Because of its adoption of what you termed and I agree quite correctly as a tautological

01:07:18Statement because the fact of prosecution was enough enough to take away

01:07:23any official immunity the fact of prosecution they had no need to look at what

01:07:29Courts normally look at when you're talking about a privilege or immunity question. Well, I think I would take issue

01:07:35Mr. Chief justice with the idea of taking away immunity. There is no immunity

01:07:40That is in the constitution unless this court creates it today. There certainly is no textual immunity

01:07:47We do not submit that that's the end of the story united states versus nixon wasn't a textually based case

01:07:53Neither was nixon versus fitzgerald. We endorse both of those holdings

01:07:58But what is important is that no public official has ever had the kind of absolute

01:08:04Criminal immunity that my friend speaks of even with respect to the speech or debate clause. It's very narrow

01:08:11It's focused on legislative acts

01:08:13It's not focused on everything that a congressman does and it responds to a very specific historical circumstance

01:08:20That basically involved the two other branches

01:08:24Potentially harassing legislators and preventing them from doing their jobs. That's why it ended up in the constitution

01:08:31Nothing like that ended up in uh in the

01:08:35Constitution for the presidents and that's because one of the chief concerns of the framers was the risk of presidential misconduct

01:08:43They labored over this they

01:08:46Adopted an impeachment

01:08:48Structure that separated removal from office as a political remedy from criminal prosecution

01:08:55This departed from the british model

01:08:57The british model was you get impeached and criminally prosecuted and convicted in the same proceeding

01:09:04The framers did not want that they wanted a political remedy in case a president

01:09:09Was engaging in conduct that endangered the nation. He could be removed. He can't be prosecuted while he's a sitting president

01:09:16That's been the long-standing justice department position. Mr. Dreeben you dispute the

01:09:22Proposition that a former president has some form of immunity

01:09:27But as I understand your argument you do recognize that a former president has a form of special protection

01:09:36namely that

01:09:38Statutes that are applicable to everybody must be interpreted differently

01:09:43Under some circumstances when they are applied to a former president. Isn't that true?

01:09:48It is true because justice alito of the general principle that courts construe statutes to avoid

01:09:54Serious constitutional questions and that has been the long-standing practice of the office of legal counsel in the department. All right, so

01:10:02this is

01:10:04more I think than just a

01:10:08A quarrel about terminology whether what the former president gets is some form of immunity

01:10:13Or some form of special protection because it involves this difference

01:10:18Which I'm sure you're very well aware of if it's just a form of special protection in other words

01:10:23Statutes will be interpreted differently as applied to a former president

01:10:27then

01:10:29that is something that has to be litigated at trial that the former president can make a motion to dismiss and

01:10:36May cite OLC opinions and the district court may say well, that's fine. I'm not bound by OLC

01:10:43And I interpret it differently

01:10:45So let's go to trial and then there has to be a trial and that may involve

01:10:51great expense and it may take up a lot of time and during the trial the

01:10:58former president may be unable to engage in other activities that the former president would want to engage in and

01:11:05Then the outcome is dependent on the jury the instructions to the jury and how the jury returns a verdict

01:11:12And then it has to be taken up on appeal

01:11:14So the protection is greatly diluted if you take the form if it takes the form that you have

01:11:22Proposed and why is that better?

01:11:24It's better because it's more balanced the blanket immunity that petitioner is arguing for

01:11:31Just means that criminal prosecution is off the table unless he says that

01:11:38Impeachment and conviction have occurred

01:11:40those are political remedies that are extremely difficult to achieve in a case where the

01:11:45Conduct misconduct occurs close to the end of a president's term

01:11:49Congress is unlikely to crank up the machinery to do it

01:11:52And if the impeachment trial has to occur after the president has left office

01:11:57There's an open question about whether that can happen at all. So you're arguing against most

01:12:03far-reaching

01:12:05Aspects of mr. Sowers argument that that is that is correct. And and let me turn then to why well

01:12:11What about to unpack it a little more?

01:12:14Do you agree that there are some aspects of article 2 presidential power that are exclusive and that Congress cannot regulate?

01:12:22And therefore cannot criminalize. Absolutely

01:12:25Okay for other official acts that the president may take that are not within that exclusive power

01:12:32Assume for the sake of argument this question that there's not

01:12:37blanket immunity for those official acts but that to

01:12:41Preserve the separation of powers to provide fair notice to make sure Congress has thought about this

01:12:48that Congress has to speak clearly to

01:12:52criminalize official acts of the president

01:12:55By a specific reference that seems to be what the OLC opinions suggest

01:12:59I know you have a little bit of a disagreement that and what this court's cases also suggests

01:13:04So just cabin, I'd like like to take all of those in turn because I don't think this court's cases speak that broadly

01:13:10I definitely don't think that the Office of Legal Counsel opinions stand for this broad

01:13:16Proposition that unless the president is specifically named he's not in the statute and I don't think that that's necessary

01:13:23in order to afford adequate protection

01:13:25For the president's valid article to function you said unless I'm sorry to interrupt

01:13:30But I want to just get this out and you can incorporate in the answer. You said unless there's a serious constitutional question

01:13:37Well, it's isn't it's a serious constitutional question whether a statute can be applied to the president's official acts

01:13:44So wouldn't you always?

01:13:47Interpret the statute not to apply to the president even under your formulation unless Congress had spoken

01:13:55I don't think across the board that a serious constitutional question exists on applying any criminal statute to the president

01:14:02The problem is the vague stat, you know obstruction and 371 conspiracy to defraud the United States can be used against a lot of

01:14:10presidential activities historically with an

01:14:14Creative prosecutor who wants to go after a president. Well

01:14:20Let me try to

01:14:22That's what we're talking about historically is the risk that and going forward the risk so you can take all of that

01:14:29I think that the question about the risk is very serious

01:14:33And obviously it is a question that this court has to evaluate

01:14:37for the executive branch our view is that there is a

01:14:42Balanced protection that better serves the interest of the Constitution that incorporates both

01:14:49Accountability and protection for the president and I want to go through the protections that do exist

01:14:54But perhaps it's worth returning at the outset to the statutory construction question that you raised the Office of Legal Counsel has said

01:15:03The offense of bribery, of course

01:15:05Applies to the president. It does not name the president justice courses section 201 does not specifically name the president

01:15:13I assume that's personal. So

01:15:16Well, I think that it's what Brewster said I get bribery statute and 607

01:15:22Says the president I've got it in front of me. And so there is there is that well

01:15:27Let me just back up though

01:15:29Just a second to what was a quick exchange with Justice Kavanaugh that I just want to make sure I understand

01:15:35Yeah, did you agree that there are some core functions of the executive?

01:15:39That present conduct that Congress cannot criminalize

01:15:43Yes, we is that a form? I mean we can call it immunity or you can call it they can't do it

01:15:48But what's the difference we call it and as applied article to challenge that? Okay. Okay

01:15:55We call it immunity just for shorthand sake

01:15:57So we so I think we are kind of narrowing the ground of dispute here

01:16:02It seems to me there is some some area you you concede that an official acts that Congress cannot

01:16:08Criminalize and now we're just talking about the scope

01:16:10Well, I don't think it's a just but I think it's a very significant gap between any official act and the small core of

01:16:18Exclusive official act I got that but I want to explore that. Okay

01:16:22So for example, let's say a president leads a mostly peaceful protest sit-in in front of Congress

01:16:31because he objects to a

01:16:33Piece of legislation that's going through and it in fact delays the proceedings in Congress

01:16:40now under 1512 c2

01:16:44That might be corruptly impeding a proceed an official proceeding

01:16:50Is that core and therefore immunized or whatever word euphemism you want to use for that?

01:16:55Not core and therefore prosecutable. Well, I without a clear statement that applies to the president

01:17:01It's not it's not core the core kinds of activities that the court has acknowledged

01:17:07Are the things that I would run through the Youngstown analysis and it's a pretty small set

01:17:13But things like the pardon power the power to recognize foreign nations the power to veto

01:17:19Legislation the power to make appointments. These are things that the Constitution

01:17:24Specifically allocates to the president once you get out a president then could be prosecuted for the conduct

01:17:31I described

01:17:32after he leaves office

01:17:34Probably not, but I want to explain the framework of of why I don't think that that would be

01:17:42Prosecution that would be valid

01:17:44First I think you need to run through all of the sort of normal

01:17:50Categories of analysis is very serious constitutional question

01:17:54That's posed by applying that statute to the president

01:17:57If so, then you may well default to it does not apply at least on that. I thought you said it

01:18:03That was my question. Yes, I said it it fell outside that core

01:18:07We'll call it immunity for simplicity's sake. Yes

01:18:13Okay, so why couldn't he be prosecuted for leading a civil rights protest in front of the Capitol that that delays a vote on

01:18:21a piece of important legislation

01:18:23So I think what you need to do is run through all of the very president specific

01:18:29Protective layers of analysis. So one of them is whether the statute would be construed not to apply to his conduct

01:18:36even if it's not

01:18:38part of that small core of things that Congress can't regulate at all if it operates to prevent the president from

01:18:45Fulfilling his article he could have given speeches against it

01:18:49Yes, but he left he did something more and it and it corruptly impeded and sought to influence an official proceeding

01:18:55Well, so I I don't know

01:18:57We're starting with the layers. I think of protection and we're now down through

01:19:02Whether the statute would be construed to apply to him then there'd be a question of whether it does I will assume it

01:19:09Then then there's a question of whether he has the state of mind necessarily

01:19:13Assume does it corrupt? Okay. Nobody knows what corrupt intent means. We've been around that tree

01:19:18I think we will probably find out and maybe it means that he knows that he was doing wrong is what the

01:19:24Government told us right? He knows he's doing wrong. He knows he shouldn't be up there

01:19:29blocking a congressman from well

01:19:31let me get to the next layer then which is that the president does have access to the Attorney General to provide legal advice and

01:19:38Regularly gets legal advice from the Attorney General on the lawful scope of the president's activities

01:19:45We could go down two tracks here

01:19:47one is that the Attorney General advises him that as an incident of his article to authority and in carrying out

01:19:54The functions of the presidency he can lawfully participate in that protest. It's kind of the First Amendment analog to

01:20:03The president's official powers, which the court is exploring in other cases

01:20:08Alternatively, the Attorney General could advise him. I'm sorry. Mr. President. There's nothing in the language of this statute that carves you out

01:20:15I don't see a serious constitutional question in it because you don't have to do that and I would advise you not to

01:20:22Prosecuted no. No if he gets a negative opinion from the Attorney General, he still couldn't be prosecuted

01:20:28I'm gonna assume that most presidents are not going to take in a well

01:20:31But if he gets one and does it anyway, then he could be prosecuted

01:20:33Well, so then if we are down at that level

01:20:35I think what we are really asking is whether the president is subject to the criminal law and our answer is yes

01:20:41He is subject to the criminal. Mr. Druden, can we go back to

01:20:45the bribery statute I like you

01:20:48Understand that the only thing that is covered by that is the president is barred from soliciting or receiving

01:20:55Funds in any room or building in the United States. That is correct. It's an extremely official building. It's a very limited

01:21:02Yes mention and it really I think I understand

01:21:05So as I understand this, there's two very limited

01:21:09Provisions mentioning the president is included. That's right

01:21:12There's a whole number of provisions that exclude the president many many many more that exclude the president, correct

01:21:19It's a kind of small number on both sides of the now justice Barrett made the point

01:21:25That if we say a president can't be included in a criminal law unless explicitly named then that would bar the Senate

01:21:34From impeaching him for high crimes or misdemeanor because that means that he's not subject to the law at all, correct

01:21:41So I think that's a tautology. You can't escape

01:21:46Just settle my or what I think that justice Barrett was saying and we would agree with it

01:21:50Is that under my friend's position after impeachment?

01:21:53He could be prosecuted but under his statutory construction approach. There'd be nothing to prosecute him for exactly

01:22:00That's the point which is if he's not covered by the criminal law. He can't be impeached for it. You're violating it

01:22:06All right. Now, could we go further on this clear statement room?

01:22:12The situations and you mentioned it earlier in which we have looked to see if the president is covered is

01:22:20Contextual correct, correct. And what are the factors that generally will look at I'm thinking specifically about whether the APA

01:22:28Covers the president correct and what we did there was to analyze what powers were being given

01:22:35To in the lawsuit and etc. We looked at words. We looked at structured. We looked at

01:22:42separation of powers issues

01:22:43Relating to our case law that said you can't direct the president to do anything and this would have been a subterfuge for that

01:22:50Correct. All correct. All right, so I don't know why two of my colleagues

01:22:57How they would fashion a clear statement rule that would say when the law says any person can't accept the bribe

01:23:05That that permits the president to do it

01:23:08So I

01:23:10Agree, justice Sotomayor that that that the way that this court has interpreted statutes that do carve out the president justice

01:23:17Kavanaugh asked about this was very context-specific

01:23:20the Franklin case

01:23:22Basically involved a holding that we are highly unlikely to say that the president is an agency

01:23:29Something that the government said would be a peculiar understanding of agency

01:23:34When the effective it would be that we would review the president's decisions under statutes for abuse of discretion

01:23:40Which is a very extraordinary thing to do

01:23:43I think even going back to Marbury is perhaps a point on which I agree with my friend

01:23:47Marbury says discretionary acts of the president are not the kind of thing that the court reviews

01:23:52all right, could I go back to your brief and and

01:23:57Going back to what some of my colleagues have asked you

01:24:00There appears to be some narrowing principles to the concept that the

01:24:06President is subject to all criminal laws in all situations

01:24:10You agree that if it affects core powers

01:24:15Then though he would not be subject to any laws that attempted to limit those core powers. That is right

01:24:22You're defining core powers as those specified by article two

01:24:26That is essentially correct, yes, all right, and the only words in the Constitution is that

01:24:36That have to do with the president in law is that he shall take care that the law be faithfully executed, correct

01:24:43That's right hard to imagine that a president who breaks the law

01:24:47Is faithfully executing the law, correct? He has to execute all of the laws

01:24:52Mr. Dreeben, do you really, I mean the president's have to make a lot of tough decisions about

01:24:59enforcing the law and they have to make decisions about questions that are unsettled and

01:25:05They have to make decisions based on the information that's available

01:25:09Do you really, did I understand you to say well, you know, if he makes a mistake, he makes a mistake

01:25:14He's subject to the criminal laws just like anybody else. You don't think he's in a special, a

01:25:20peculiarly precarious position?

01:25:23He's in a special position for a number of reasons. One is that he has access to legal advice about everything that he does

01:25:30He's under a constitutional obligation

01:25:32He's supposed to be faithful to the laws of the United States and the Constitution of the United States and

01:25:38Making a mistake is not what lands you in a criminal prosecution

01:25:42There's been some talk about the statutes that are issue in this case

01:25:46I think they are fairly described as Malamin say

01:25:50statutes

01:25:52engaging in

01:25:53conspiracies to defraud the United States with respect to one of the most important functions namely the

01:25:59Certification of the next president. Well, I don't want to dispute that particular application of that 371

01:26:07Conspiracy to defraud the United States of the particular facts here

01:26:10But would you not agree that that is a peculiarly open-ended

01:26:17Statutory prohibition in that that fraud under that provision unlike under most other fraud provisions does not have to do what doesn't require

01:26:26any

01:26:29Impairment of a property interest

01:26:31It's designed to protect the functions of the United States government

01:26:34And it's difficult to think of a more critical function than the certification of who won the election

01:26:40Yeah, as I said, I'm not discussing the particular facts of this case, but it applies to

01:26:46any

01:26:47fraud that interferes

01:26:50Seriously with any government operation, right?

01:26:52So what the government needs to show is an intent to impede interfere or defeat a lawful government

01:26:59Function by deception and it has to be done with see enter

01:27:02these are not the kinds of activities that I think any of us would think a

01:27:07President needs to engage in in order to fulfill his article 2 duties and particularly in a case like this one

01:27:14I want to pick up on something that the court said earlier about the distinction between a public official acting to achieve

01:27:22Publicans and a public official acting to achieve private ends as applied to this case

01:27:28The president has no functions with respect to the certification of the winner of the presidential election

01:27:36It seems likely that the framers designed the Constitution that way because at the time of the founding

01:27:43Presidents had no two-term limit. They could run again and again and

01:27:48Were expected potentially to want to do that

01:27:51So the potential for self-interest would explain why the state's

01:27:56conduct the elections they send

01:27:59electors to

01:28:01Certify who won those elections and to provide votes and then Congress in a joint extraordinary joint session

01:28:08Certifies the vote and the president doesn't have an official role in that proceeding

01:28:13So it's difficult for me to understand how there could be a serious constitutional question about saying

01:28:19You can't use fraud to defeat that function. You can't obstruct it through deception

01:28:25You can't deprive millions of voters of their right to have their vote counted for the candidate who they chose. Thank you counsel

01:28:33justice Thomas

01:28:35justice, Alito

01:28:38Could

01:28:40We just briefly review the layers of protection that you think exists and I'm going to start with what

01:28:47The DC Circuit said so the first layer of protection is that attorneys general and other Justice Department attorneys can be trusted

01:28:54to act in a professional and

01:28:57Ethical manner, right? Yes

01:29:00how

01:29:02Robust is that protection? I mean most of the the vast majority of attorneys general and Justice Department of attorneys

01:29:09And we both served in the Justice Department for a long time are honorable people and they take their professional ethical

01:29:16Responsibilities seriously, but there have been exceptions right both among attorneys general and among federal prosecutors

01:29:24There have been rare exceptions justice Alito, but when we're talking about layers of protection

01:29:29I do think this is the the starting point and if the court has concerns about the robustness of it

01:29:35I would suggest looking at the charges in this case

01:29:39They well, I'm going to talk about this in in the abstract because what is before us of course does involve this particular case

01:29:46Which is immensely important, but whatever we decide is going to apply to all future presidents

01:29:52So as for attorneys general there have been two who were convicted of criminal offenses while in office

01:29:58there were others a

01:30:00Mitchell Palmer's one that comes to mind who is widely regarded as having abused the power of his office

01:30:07Would you agree with that? I would but they are two

01:30:11officials in a long line of attorneys generals who did not and in Departments of Justice that are staffed by

01:30:18Multiple people who do adhere to their office and just Alito if I could just the point that I wanted to make about this case

01:30:24Does go to the general proposition the allegations about the misuse of the Department of Justice to perpetuate

01:30:32election fraud

01:30:33Show exactly how the Department of Justice functions in the way that it is supposed to

01:30:39Petitioner is alleged to have tried to get the Department of Justice to send fraudulent letters to the states to get them to reverse

01:30:47electoral results

01:30:49Understand I understand that mr. Driven, but as I said this

01:30:53Case will have effects that go far beyond this particular prosecution

01:30:59So moving on to the second level of protection that the DC Circuit cited federal grand juries

01:31:05Will shield former presidents from unwarranted indictments?

01:31:09How much protection is that?

01:31:11Well, it affords two levels of protection one is the probable cause finding requires evidence

01:31:18I think some of the fears about

01:31:20Groundless prosecutions aren't supported by evidence, and they're not going to get out of the starting game there

01:31:26There's the old saw about indicting a ham sandwich

01:31:30Yes, but I think just you had a lot of experience in the Justice Department you come across a lot of cases where?

01:31:37The the US attorney or another federal prosecutor really wanted to indict a case and the grand jury

01:31:44Refused to do so there are such cases

01:31:46Yeah, yes

01:31:48But I think that the other once in a while. There's an eclipse, too

01:31:53Well, I think that that's for the most reason is prosecutors have no incentive to bring a case to a grand jury and secure an indictment

01:32:00Well, they don't have evidence to prove guilt beyond a reasonable doubt. It's self-defeating all right

01:32:05Then the third level is that former presidents enjoy all the protections afforded all criminal defendants, right?

01:32:10And we've discussed that and that may be true at the end of the day, but a lot can happen

01:32:16Between the time when an indictment is returned and the time when the former president

01:32:24Finally gets a vindication perhaps on appeal isn't that correct?

01:32:28It is correct justice Alito

01:32:30But I think that we should also consider the history of this country as members of the court have observed

01:32:36It's baked into the Constitution that any president knows that they are exposed to potential criminal

01:32:43Prosecution my friend says after impeachment and conviction we don't read the impeachment judgment clause that way

01:32:49But we are it's common ground that all former presidents have known that they could be indicted and convicted and Watergate

01:32:57Cemented that understanding the Watergate smoking gun tape

01:33:02involved President Nixon and HR Haldeman

01:33:06Talking about and then deciding to use the CIA

01:33:09To give a bogus story to the FBI to shut down a criminal investigation

01:33:14I mean you mr. Sauer and others have identified events in the past where presidents have engaged in

01:33:21conduct that might have been charged as a federal crime and

01:33:27You you say well, no, that's not really true. This is page 42 of your brief

01:33:32So what about President Franklin D Roosevelt's decision to intern Japanese Americans during World War two?

01:33:40couldn't that have been charged under

01:33:4318 USC 241

01:33:45Conspiracy against civil rights today. Yes, given this court's decision in

01:33:51Trump versus United States in which

01:33:55The you know Trump versus Hawaii, excuse me

01:33:58Where the court said Korematsu is overruled and President Roosevelt made that decision with the advice of his Attorney General

01:34:05That's a layer. Is that really true? I thought I thought Attorney General Biddle thought that

01:34:10There was really no threat of sabotage as did J. Edgar Hoover. So I think that there is a lot of historical

01:34:17Controversy, but it underscores that that occurred during wartime. It implicates a potential commander-in-chief

01:34:26Concerns concerns about the exigencies of national defense that might provide an as-applied

01:34:33Article 2 challenge at the time

01:34:36I'm not suggesting today

01:34:37But the idea that a decision that was made and ultimately endorsed by this court perhaps wrongly in the Korematsu case

01:34:45Would support criminal prosecution under 241

01:34:48Which requires under United States versus Lanier that the right have been made specific so that there is notice to the president

01:34:55I don't think that would have been satisfied. All right. Well, we could go through other historical examples. I won't do that

01:35:00Let me just touch briefly on a couple of other things

01:35:03One is the relevance of advice of counsel and I wasn't clear what your answer is

01:35:08so if the president gets

01:35:10Advice from the Attorney General that something is lawful. Is that an absolute defense?

01:35:17Yes, I think that it is

01:35:20Under the principle of entrapment by estoppel

01:35:23this is a due process doctrine that we referred to in our brief a reply brief in

01:35:29Garland versus Cargill this term at page 19 where we cited authority of this court that if a

01:35:35Authorized government representative tells you that what you are about to do is lawful. It would be a

01:35:41Root violation of due process to prosecute you for that. Well that won't that give

01:35:47presidents an incentive to be sure to pick an attorney general who can

01:35:52Who will reliably tell the president that it is lawful to do?

01:35:57Whatever the president wants to do if there's any possibly conceivable

01:36:01Argument in favor of it

01:36:03so I think the constitutional structure protects against that risk the president nominates the Attorney General and

01:36:10The Senate provides advice and consent and these are the sort of structural checks that have operated for 200 years

01:36:18To prevent the kind of abuses that my friend fears going forward as a result of this once-in-history

01:36:25prosecution

01:36:27On the question of whether a president has the authority to pardon himself, which came up earlier in the argument

01:36:35What's the answer to that question?

01:36:36I don't believe the Department of Justice has taken a position that the only authority that I'm aware of is a member of the

01:36:42office of legal counsel wrote on a

01:36:44Memorandum that there is no self pardon authority as far as I know the department has not addressed it further and of course this court

01:36:51had not

01:36:52Addressed it either. Well when you address that question before us

01:36:55Are you speaking in your capacity solely as a member of the special counsel's team or or are you speaking?

01:37:03On behalf of the Justice Department, which has

01:37:08special

01:37:09Institutional responsibilities. I am speaking on behalf of the Justice Department

01:37:14representing the United States

01:37:15Now, how don't you think we need to know the answer to at least to the Justice Department's position on that issue in order to

01:37:24decide this case because if a president has the authority to pardon himself before

01:37:30leaving office and

01:37:33The DC Circuit is right that there is no

01:37:36immunity from prosecution

01:37:37Won't the the predictable result be that presidents on the last couple of days of office are going to pardon themselves from anything

01:37:44That they might have been conceivably charged with committing

01:37:47I really doubt that Justice Alito

01:37:49I mean it sort of presupposes a regime that we have never had except for President Nixon and as alleged in the indictment here

01:37:57Presidents who are conscious of having engaged in wrongdoing and seeking to shield themselves

01:38:02I think the political consequences of a president who asserted a right of self-pardon that has never been recognized

01:38:08That seems to contradict a bedrock principle of our law that no person shall be the judge in their own case

01:38:15Those are adequate deterrence

01:38:17I think so that this kind of dystopian regime is not going to evolve or let me and end with just a question about

01:38:25what is

01:38:27required for

01:38:29The functioning of the stable democratic society, which is something that we all want

01:38:36I'm sure you would agree with me that a stable

01:38:40Democratic society requires that a candidate who loses an election

01:38:45Even a close one even a hotly contested one leave office

01:38:51Peacefully if that candidate is it is the incumbent of course all right now

01:38:56if a

01:38:58an incumbent who

01:39:01Loses a very close hotly contested election knows that a real possibility

01:39:09After leaving office is not that the president is going to be able to go off into a peaceful retirement

01:39:15But that the president may be criminally prosecuted by a bitter political opponent

01:39:22will that not lead us into a

01:39:26cycle that

01:39:28Destabilizes the functioning of our country as a democracy and we can look around the world and find countries where we have seen

01:39:35This process where the loser gets thrown in jail, so I think it's exactly the opposite Justice Alito

01:39:42there are lawful mechanisms to contest the results in an election and

01:39:48outside the record, but I think of

01:39:50public knowledge

01:39:53petitioner and his allies filed

01:39:56Dozens of electoral challenges and in my understanding is lost all but one that was not outcome

01:40:03Determinative in any respect there were judges

01:40:06That said in order to sustain substantial claims of fraud that would overturn an election

01:40:14Results that certified by a state you need evidence you need proof and none of those things were manifested

01:40:20So there is an appropriate way to challenge things through the courts with evidence if you lose

01:40:25You accept the results that has been the nation's experience. I think the court is well familiar with that. Thank you

01:40:32Justice Sotomayor

01:40:35The stable democratic society

01:40:38Needs the good faith of its public officials, correct? Absolutely and that good faith assumes

01:40:45That they will follow the law

01:40:47correct

01:40:48Now putting that aside. There is no failsafe system of government

01:40:54Meaning we have a judicial system

01:40:57that has

01:40:58layers and layers and layers of protection for accused defendants in the hopes that

01:41:06The innocent will go free

01:41:08We fail

01:41:09routinely

01:41:12But we succeed

01:41:14More often than not in the vast majority of cases the innocent do go free

01:41:20Sometimes they don't and we have some post

01:41:24Conviction remedies for that

01:41:27But we still fail we've executed innocent people

01:41:31having said that

01:41:33justice

01:41:34Alito went through

01:41:36Step by step all of the mechanisms that could potentially fail

01:41:42In the end if it fails completely

01:41:45It's because we've destroyed our democracy on our own, isn't it?

01:41:50It is justice Sotomayor, and I also think that there are additional checks in the system

01:41:56Of course, the constitutional framework is designed a separated power system in order to limit abuses

01:42:03I think one of the ways in which abuses are limited is accountability under the criminal law for criminal violations

01:42:10but the ultimate check is the goodwill and faith in democracy and

01:42:16Crimes that are alleged in this case that are the antithesis of democracy

01:42:21That's something that undermine that

01:42:23An encouragement to believe words that been somewhat put into suspicion here

01:42:30That no man is above the law either in his official or private acts

01:42:34I think that is an assumption of the Constitution

01:42:40Justice Kagan

01:42:41Mr. Dreeben, I want to go through your framework and make sure I understand it

01:42:46So first on the small category of things that you say have absolute protection that they are core executive functions

01:42:54Yes

01:42:55What are those small categories?

01:42:58Pardon power? Pardon? Veto? Veto, foreign recognition

01:43:04Appointments, Congress cannot say you can't appoint a federal judge who hasn't received, you know, a certain diploma

01:43:10Hasn't achieved a certain age

01:43:14There are a few other powers

01:43:15Is commander-in-chief?

01:43:17Commander-in-chief is on the list, but I want to add to

01:43:22My answer on that, that Congress has substantial authority in the national security realm

01:43:27Congress declares war, it raises armies, it has power over the purse

01:43:31That's more of a

01:43:32So that may be viewed as not really in that core set of functions, which nobody has any power but the president over

01:43:38Yes, I think that there may be some aspects like directing troops on the field in which the president's power is completely unreviewable

01:43:46Okay, now in

01:43:48In the next category where we've left the core set behind

01:43:53Yes

01:43:53But we're still in the world of official actions and that's where you say there are

01:44:00Various statutory construction rules that might come into play

01:44:03Correct

01:44:04But you have characterized those as something different from just saying oh look the statute doesn't say the president

01:44:10Therefore it doesn't apply to the president

01:44:12That's right

01:44:12So I wanted to give you an opportunity to say, you know

01:44:16how that would look how that analysis would look in a given case and and in the course of

01:44:22Responding to that, you know, I'm sort of thinking of something like the OLC opinion which says bribery the president can be

01:44:31Tried and convicted of bribery even in the part of the bribery statutes that do not say the president

01:44:39Why is that true?

01:44:41That is true because there is no serious constitutional question that the president needs to be engaged in bribery in order to carry out

01:44:48His constitutional functions and the Office of Legal Counsel pointed out that bribery is enumerated in the impeachment clause

01:44:55so it falls outside of anything that could be viewed as

01:44:59Inherent in the need of article 2 to function

01:45:02Do you think the premise of that OLC opinion was that the bribery was simply not official?

01:45:07no, or is the premise that the bribery was official and

01:45:11And still the president could be prosecuted for it

01:45:14I think that that bribery is is the kind of hybrid that illustrates the abuse of public office for private gain that we think is

01:45:23paradigmatic of the kinds of things that should be

01:45:26Not held to be immune in a bribery case

01:45:29the public official cannot extract the bribe without the official power to offer as

01:45:35The quid or the pro I guess the quo actually

01:45:41So it really is a crime that can only be committed by public officials who misuse their power

01:45:47And it was one of the things that was most mistrusted

01:45:50Many of the acts that are charged in this indictment or that would violate federal criminal law similarly involved in this use of

01:45:58official power for private gain

01:46:00So if you were to say like what the line is in this category like when it is

01:46:05That the statute should be understood as precluding presidential prosecution

01:46:10And when it is that the statute should be understood as allowing it what general principles should guide?

01:46:16So the the general principles

01:46:18I think kind of emerged from looking at what the office of legal counsel has done so for example

01:46:24With a respect to a federal statute that prohibited appointments to courts of people within certain degrees of consanguinity

01:46:33The office of legal counsel said this infringes on a very important appointment power of the president the power to appoint federal judges

01:46:40It cannot be presumed that Congress intended to do that because it would raise a very serious constitutional question

01:46:47The president is out

01:46:49Then there are categories of statutes where the president is in like for example the grassroots

01:46:55Lobbying statute the office of legal counsel wrote an opinion about that

01:46:59And it said for the president or other public officials to go out into the world and to promote their programs

01:47:05That can't be what Congress intended to prohibit what it did intend to prohibit is

01:47:10Using federal funds to Jenna gin up an artificial grassroots campaign that gave the appearance of emerging from the people

01:47:17But it was really top-down and the office of legal counsel said the president and officials who carry out the president's

01:47:24Mandates are subject to that statute, so that's a more nuanced one and the third example that I will give you is

01:47:31the statute that would

01:47:34Permit prosecution for contempt of Congress the office of legal counsel

01:47:38Concluded that a good-faith assertion of executive privilege as a reason for not providing information to Congress would preclude

01:47:46Prosecution because Congress cannot be deemed to have altered the separation of powers in such a manner

01:47:52I think OLC probably would have gone on to say if Congress tried to do it. It would be deemed unconstitutional

01:47:59But again, this was a statute that did not specifically name the president

01:48:03There are only two that do that so the entire corpus of federal criminal law including bribery offenses

01:48:11Sedition murder would all be off-limits if it were taken to the to the to the extent that some of the questions

01:48:19Have suggested and for the general principle

01:48:22Does it raise a serious constitutional question and if so to what extent can it be carved out individually and there may be some

01:48:30Instances where the statutes here could be carved out and a particular act could be found to be protected

01:48:38Or does the statute across the board in such a wide range of applications somewhat analogous to overbreadth analysis

01:48:47Infringe on the president's power so that we're gonna say that that the president is just out now that set of issues

01:48:52They seem important and may occasionally be difficult

01:48:57They also seem not really before us in the way Justice Jackson suggested earlier

01:49:03What do you said? I mean, do you think they are before us? We should just clear it up. Here it is. We have a case

01:49:09What what else could we do? How should we deal with this that there are these lingering issues?

01:49:14They'd go beyond the question of whether there's the kind of absolute immunity that

01:49:20The former president is invoking. So I think the court has discretion to reach that issue

01:49:26Even though Justice Jackson is totally right

01:49:28it was not raised in the district court and it was not raised in the Court of Appeals and

01:49:33The the analysis that I would use to get there is a fusion of a couple of principles

01:49:38One is the court has often resolved

01:49:41Threshold questions that are a prerequisite to an intelligent resolution of the question presented

01:49:46So in a case like United States versus grubs, for example, the court reached out to decide what whether

01:49:53Anticipatory warrants are valid under the Fourth Amendment before turning to the question whether the triggering condition for an anticipatory warrant

01:50:00had to be in the warrant, so that's one principle and then a

01:50:05precedent that bears some analogy to this is

01:50:09Vermont Natural Resources Agency versus United States XRL Stevens

01:50:14It was a key TAM case and the first question was whether a state agency

01:50:19Was a person within the meaning of the False Claims Act and the second question was whether if the state agency was

01:50:2811th Amendment immunity kicked in and the court wrote an analysis of why it could reach both questions

01:50:35The reaching the person question didn't expand the court's jurisdiction and it made sense as a matter of constitutional avoidance to do that

01:50:43There are some considerations that cut against this and I want to be clear that for overall government equities. We are not wild about

01:50:51parties who raise a

01:50:54immunity case that can be

01:50:56Presented to a court on an interlocutory appeal and then smuggling in other issues

01:51:00So we would want to guide the court not to have an expansive approach to that issue

01:51:06but the final thing that I would say about this is part of our submission to this court is that the

01:51:13Article 1 branch and the Article 2 branches are aligned in believing that this prosecution is an appropriate way

01:51:20to enforce the law. Congress by making the law the current executive by deciding to bring it and since a building block of that

01:51:29Submission is that Congress actually did apply these criminal laws to official conduct

01:51:33The court may wish to exercise its discretion to resolve that issue

01:51:37Okay, I have one last set of questions which has to do with the official on unofficial line and you heard

01:51:44Mr. Sowers

01:51:46responses to both Justice Barrett's questions and my questions about what he thinks counts as official here's and what he thinks counts as

01:51:54Unofficial here and I'm just wondering what you took from

01:51:58His responses and also how you would characterize what is official and what is not official in this indictment

01:52:06So I think petitioner conceded that there are

01:52:11Acts that are not official that are alleged in the indictment and we agree with him on all of that

01:52:15I think I disagree with him on everything else that he said about what is official and what is not

01:52:22Organizing fraudulent slates of electors creating false

01:52:26Documentation that says I'm an elector. I was appointed properly

01:52:31I'm gonna send a vote off to Congress that reflects that

01:52:35petitioner one rather than the candidate that actually got the most votes and who was

01:52:40Ascertained by the governor and whose electors were appointed to cast votes. That is not

01:52:46Official conduct that is campaign conduct and I think that the DC Circuit in the blasting game case

01:52:53did draw an appropriate distinction a

01:52:56first-term president who's running for re-election can act in the capacity as

01:53:00Office seeker or office holder and when working with private lawyers and a private public relations

01:53:09Advisor to gin up fraudulent slates of electors. That is not any part of a president's job

01:53:16So there's I'm sorry

01:53:17There's an allegation in the indictment that has to do with the removal of a Justice Department

01:53:23Official would with is that core protected conduct? We don't think that that's core protected conduct

01:53:28I don't think that that I would characterize that episode quite that way

01:53:32We do agree that the Department of Justice allegations were a use of the president's official power in many ways

01:53:40We think that aggravates the nature of this offense

01:53:44seeking as a

01:53:46Candidate to oust the lawful winner of the election and have one self certified

01:53:51With private actors is a private scheme to achieve a private end and many of the co-conspirators

01:53:58Alleged in the indictment are private

01:54:00But for an incumbent president to then use his presidential powers to try to enhance the likelihood that it succeeds

01:54:08Makes the crime in our view worse. And so in the Department of Justice episode

01:54:13It's cars very late in the election cycle after many other schemes had failed

01:54:19and at that point the

01:54:23Petitioner is alleged to have tried to pressure the Department of Justice to send false letters to the states

01:54:29Claiming that there were serious election irregularities and that they should investigate who they certified as a president

01:54:36None of this was true. The Department of Justice officials all said this is not true

01:54:40We are not going to do that

01:54:42and at that point

01:54:43petitioner is alleged to have threatened to remove the Department of Justice officials who were standing by their oath and

01:54:50Replace them with another person who would carry it out

01:54:53We're not seeking to impose criminal liability on the president for exercising or talking about

01:55:00Exercising the appointment and removal power

01:55:03No

01:55:03What we're seeking to impose criminal liability for is a conspiracy to use fraud to subvert the election

01:55:10One means of which was to try to get the Justice Department to be complicit in this the case would have been no different

01:55:16if petitioner were successful

01:55:18And he had actually exercised the appointment and removal power and had gone through and those fraudulent letters were sent

01:55:25It would have made the scheme more dangerous, but it would not have changed the crime

01:55:28And how do we think about things like conversations with the vice president in other words things that if you say it that way

01:55:35It's clear that they would fall under executive privilege

01:55:37But how does that relate to the question that we're asking here?

01:55:42so this is one of the most difficult questions for the Department of Justice and

01:55:47I want to explain why that is if we are operating under a

01:55:52Fitzgerald versus Nixon lens and looking at this the way that we look at things when there is a private lawsuit

01:55:59filed against the president

01:56:01We take a very broad view of what the outer perimeter of official presidential action is in

01:56:07Order to be as protective of the president against private lawsuits that as this court explained in

01:56:14Nixon versus Fitzgerald can be very deleterious to the president's conduct of business

01:56:18So if we were putting this under a Fitzgerald lens

01:56:22We would then have to answer to the question was he acting in the capacity as office seeker?

01:56:28Or was he acting in the capacity as office holder?

01:56:32And if you run through the indictment you can find support for those two

01:56:37Characterizations and the Department of Justice has not yet had to come to grips with how we would analyze that set of interactions

01:56:46Thank you

01:56:47Justice Gorsuch if you did though, I just wanted to confirm

01:56:50I thought I heard you thought that the blazing game framework was the appropriate one

01:56:56Largely, yes, Justice Gorsuch. We we agree with the idea of

01:57:02The

01:57:04distinction between office holder and office seeker

01:57:07We also agree that if it's objectively reasonable to view the activities as

01:57:14Those of office holder than the Fitzgerald immunity kicks in

01:57:19I think we would look more at the content of the actual

01:57:25Interaction in order to make that determination

01:57:27Then blasting game suggested at least on the facts of that case might be appropriate

01:57:32Can you give me an example of what you have in mind? I'm just trying to understand what nuance you're suggesting

01:57:37So so so blasting game adopted, you know, generally very favorable pro-government

01:57:43Framework that we endorse. I would have bought cases

01:57:47Okay, not here because we don't think that Fitzgerald applies in the criminal. I understand that but but but but but putting that aside

01:57:54The distinction between official act and private office seeker. Yes, their test is you think

01:58:00Good enough for government work. I I

01:58:04On this one the department hasn't taken a next step since the blasting game decision

01:58:11But let me offer a few thoughts that just scores, which I think might clarify it the blasting game decision focused on

01:58:18Objective contextual indications to try to see whether the president was acting as a campaigner as opposed to a

01:58:26You know an office holder

01:58:27I think that that that decision can also be made by looking at what the president

01:58:34Actually said and let me illustrate that with an allegation that I think my briefly talked briefly

01:58:40That in one of the interactions between petitioner and a state official

01:58:46Petitioner is alleged to have said all I needed you to do is to find me

01:58:5111,000 votes and change. I think if you look at that that content, it's pretty clear that

01:58:57Petitioner is acting in the capacity as office seeker not as president and we would look at that content

01:59:03Okay, okay, but the test I'm just focused on the legal test, right?

01:59:06I'm not hearing any objections to it other than I think that the DC Circuit placed more

01:59:13Content consideration off-limits than I would okay. All right, and then I wanted to understand it on the core

01:59:20Immunity or whatever word we use that it seems to me that we're narrowing the ground of dispute here considerably

01:59:28Do you do we look at motives the president's motives for his actions? I mean

01:59:35For example, he has lots of war powers as we've discussed

01:59:39But he might use them in order to enhance his election his personal interests

01:59:44is that a relevant consideration when we're looking at core powers, so I am thinking of this more as looking at the

01:59:52objective of the activity as opposed to the kind of

01:59:57Subjective motive in the sense that your honor is talking about

02:00:00I think that there is a lot of concern about saying an electoral motive to be reelected as such every first term president

02:00:08Everything he does can be seen through the

02:00:11prism of by critics at least of

02:00:14His personal interest in reelection. Yes, and so you wouldn't want that. I would I think you would say

02:00:21Personal motivations off-limits with respect to the core powers

02:00:26Probably well with respect to the core powers

02:00:28We think those are just things that can't be regulated at all like the pardon power and veto right regardless of motive correct

02:00:34Regardless, that's right. Okay. That's right. All right. So then we're in the non core powers, right where we're fighting over

02:00:40What role do motives play there? I mean

02:00:45One could remove an

02:00:47appointee that well, first of all is maybe ask this first is removing an appointee a

02:00:53Presidential appointee a core power or a non core power in the world

02:00:57So here I might need to differentiate between the principal officers that this court in cases like Myers and

02:01:06seal a law has regarded as

02:01:09Having a constitutional status of being removable at will from inferior officers where Congress does have some regulatory

02:01:17impose

02:01:18Restrictions on removal and and let's put that aside. Yeah, I understand that put it put in that aside

02:01:24Yes, appointing a principal officer is a core power

02:01:27I am not prepared to say that there is no potential criminal regulation to say you can't do it

02:01:35For corrupt purposes to enrich yourself, for example

02:01:39Bribery. All right, but but but that's what I was wondering the motives come into the core power

02:01:45Analysis or not, and now I'm hearing I thought I heard no and now I'm hearing maybe I think maybe might be a little bit

02:01:52Appropriate because it's not involved in this case. The department has not had to take a position on

02:01:58exactly how

02:02:00These core powers would be resolved under and as applied

02:02:04Constitutional analysis none is involved in this case and I guess I'm wondering and I'm not concerned about this case so much as future

02:02:11ones, too, but

02:02:14these non core powers and maybe core powers where a president is acting with a least in part a

02:02:20Personal interest in getting re-elected

02:02:24Everything he does. Yeah, he wants to get re-elected and if you're if you're allowing in motive to color that

02:02:32I'm wondering how much is left

02:02:36of either the core or non core powers

02:02:38So I would be fine with carving that out and deeming that to be something that's intrinsic in our electoral system

02:02:45we're not talking about applying criminal law to somebody who makes an announcement that this program will be good for the United States and

02:02:54Somebody could come along and say well, you really did it to get re-elected

02:02:57Leaving aside whether any of that violates a criminal law. I know that the next question is assume that it does

02:03:04I'm doubtful that it in fact does because I don't think criminal laws generally operate on motives as opposed to objectives and purposes

02:03:11But

02:03:12Well, all right intentions

02:03:14I mean you can frame a motive as an intention and intentions as a motive as you well know and every day of the week

02:03:19So let's put that aside. I understand. Well, but we're putting that aside

02:03:23That really to me falls in a very different category and it is also possible

02:03:29There's some motives or intents that that are cognizable and others that aren't I mean

02:03:35It's it's awkward right when we look at back at like the injunction

02:03:40Back to Marbury in the early cases you can't enjoin a president

02:03:44Yeah, also meant you couldn't hold him in contempt sitting a sitting for sure for sure. Yes, of course

02:03:49Can I try one more time?

02:03:51Let me just clarify spin this out just a second right and it didn't matter what the president's motives were

02:03:56We're not gonna look behind it right and and same thing in Nixon. We said gosh

02:04:02Nixon versus Fitzgerald

02:04:03That's something courts shouldn't get engaged in because presidents have all manner of motives

02:04:09And again, I'm not concerned about this case, but I am concerned about

02:04:14future uses of the criminal law to target political opponents based on

02:04:19Accusations about their motives whether it's reelection or who knows what corrupt means in 1512

02:04:27Right, we don't know what that means

02:04:29Maybe we'll find out sometime soon

02:04:32but the dangerousness of accusing your political opponent of having bad motives and

02:04:38If that's enough to overcome your core powers or any other

02:04:44limits

02:04:46Reactions thoughts. Yeah, so I think that you're raising a very difficult question. That's the idea, right?

02:04:51I mean that is the idea testing testing the limits of both sides arguments and I'm gonna say something that I

02:04:57Don't normally say which is that's really not involved in this case

02:05:02We don't have bad political motive in that sense I

02:05:06Understand that I appreciate that but you also appreciate that we're writing a rule for yes for the ages

02:05:11Yes

02:05:12and I think I would start by looking at the statutes and and then seeing what restrictions they do place on the

02:05:19President's conduct and for example the statute that prohibits

02:05:24Fraud to defeat the lawful functions the United States the statute defines what the purpose is that the defendant has to have in mind

02:05:31It has to be to defeat something that the United States is doing and it has to be by deception

02:05:37I don't think that that gets us into the realm of

02:05:40Motive hunting in the area where we are as concerned

02:05:44I think as the court would be about doing something that would undermine the presidency and the executive branch and

02:05:521512 c2 we may have different views on the clarity and the scope of that statute

02:05:57I think if the court does interpret

02:06:00Corruptly is involving a consciousness of wrongdoing and elevates that to consciousness of illegality

02:06:06Then we're in a different realm wanting to get reelected is not an illegal motive and you don't have to worry about

02:06:13Prosecuting presidents for that. Okay. Thank you. Mr. Green justice Cavanaugh

02:06:17as you've indicated this case has huge implications for the

02:06:22Presidency for the future of the presidency for the future of the country in my view

02:06:27You've referred to the department a few times as having supported the position

02:06:31Who in the department is that the president the Attorney General?

02:06:35the Solicitor General of the United States

02:06:38part of the way in which the special counsel functions is as a

02:06:43component of the Department of Justice

02:06:45the regulations envision that we reach out and consult and on a question of this magnitude that involves

02:06:53Equities that are far beyond this prosecution as the questions of the court. So it's a Solicitor General. Yes, okay

02:07:00Second

02:07:03Like justice Gorsuch, I'm not focused on the here and now of this case. I'm very concerned about the future

02:07:11And I think one of the court's biggest mistakes was Morrison versus Olson

02:07:15I think that was a terrible decision for the presidency and for the country and

02:07:20Not because there were bad people

02:07:23Who were independent councils, but President Reagan's administration President Bush's administration President Clinton's administration were really?

02:07:32hampered yes in their view all three by the

02:07:37independent council structure and what I'm worried about here is

02:07:42that

02:07:43That was let's relax article two a bit for the needs of the moment

02:07:48and I'm worried about the similar kind of

02:07:51situation applying here that was a prosecutor investigating a president in each of those circumstances and

02:07:57someone picked from the opposite party the current president

02:08:01and

02:08:03usually

02:08:04Was how it worked and Justice Scalia wrote that the the fairness of a process

02:08:10Must be adjudged on the basis of what it permits to happen. Not what it produced in a particular case. You've emphasized

02:08:16Many times

02:08:18regularity the Department of Justice and and he said

02:08:22And I think this applied to the independent council system

02:08:24And it could apply if presidents are routinely subject to investigation going forward one thing is certain however it involves

02:08:32Investigating perhaps prosecuting a particular individual can one imagine a less equitable manner of fulfilling the executive responsibility

02:08:39To investigate and prosecute

02:08:41What would the reaction be if in an area not covered by the statute the Justice Department?

02:08:46Posted a public notice inviting applicants to an assistant investigation and possible prosecution of a certain prominent person

02:08:53Does this not invite what Justice Jackson described as picking the man and then searching the law books or putting investigators to work?

02:09:00To pin some offense on him to be sure the investigation must relate to the area of criminal offense specified

02:09:08by the statute

02:09:10But that has often been and nothing prevents it from being

02:09:14Very broad I paraphrased at the end because it was referring to the judges. Yes

02:09:19That's the concern going forward is that the the system will when former presidents are subject

02:09:26To prosecution in the history of Morrison versus Olson tells us. It's not going to stop

02:09:31It's going to it's going to cycle back and be used against the

02:09:35Current president or the next president or and the next president and the next president after that

02:09:40All that I want you to try to allay that concern

02:09:43Why is this not Morrison v Olson redux if we agree with you well?

02:09:49first of all the the independent council regime did have many structural features that

02:09:56emphasized

02:09:57Independence at the expense of accountability

02:10:01We don't have that regime now, but even under that regime Justice Kavanaugh

02:10:05I think if you look at Lawrence Walsh's report on Iran-Contra. I think this goes to a very fundamental

02:10:13point for the court to consider

02:10:17Judge Walsh said I investigated these matters the proof did not nearly come close to establishing criminal violations

02:10:24So we've lived from Watergate through the present through the independent council era with all of its flaws

02:10:31Without these prosecutions having gone off on a runaway train

02:10:34Well, I think President Reagan President Bush and President Clinton whether rightly or wrongly

02:10:40Thought opposite thought contrary to what you just said

02:10:43I think nobody likes being investigated for a crime

02:10:46But it didn't result in the kind of vindictive prosecutions that I think your honor is raising as a possibility

02:10:52Yeah, we have a different system now

02:10:54I think there was a consensus throughout Washington that there were flaws in the independent council system

02:11:00It lapsed we now are inside the Justice Department with full accountability resting with the Attorney General

02:11:07so the special counsel regulations now don't operate the way that the independent council regulations do and

02:11:15This court would have something to say about it. I think if the independent council statute were revived

02:11:20I'm not sure that anybody is in favor of that right now

02:11:23I was just saying this is kind of the mirror image of that is one way someone could perceive it

02:11:28But I take your point about the different structural protections internally and like Justice Scalia said

02:11:33Let me I do not mean to suggest anything of the sort in the present case. I'm not talking about the present case

02:11:38So I'm talking about the future

02:11:41second another point you said

02:11:44Talked about the criminal statutes. It's very easy to characterize presidential actions as false or misleading

02:11:50under vague statutes, so

02:11:54A president Lyndon Johnson statements about the Vietnam War

02:12:00Say something's false

02:12:02Turns out to be false that he says about the Vietnam War

02:12:05371 prosecution so after he leaves office

02:12:08I think not but when you this is an area that I do think that merits some serious and nuanced consideration

02:12:17Statements that are made by a president

02:12:19To the public are not really coming within the realm of criminal statutes, they've never been prosecuted

02:12:26I realized that the court can say well

02:12:28What if they were and and then I think you get to what I would regard as a hard constitutional question

02:12:35I would probably guide the court away from trying to resolve today

02:12:39Although I do think it's very different from our case and distinguishable in important ways

02:12:44But you're dealing here with two branches of government that have a paramount interest in the integrity and freedom of their

02:12:51Interactions with each other on the one hand the president of course should be very free to send usually his

02:13:00Cabinet officials and subcabinet officials to testify to Congress to provide them with the information needed to enact

02:13:07legislation and to make national policy and

02:13:10We're very concerned about anything that would trammel that on the other side of the equation

02:13:15Congress has a compelling interest in receiving

02:13:18Accurate information and at the very least not information that is

02:13:23Intentionally and knowingly false that would pollute the legislation. How about I think came up before President Ford's pardon

02:13:32Very controversial in the moment. Yes, hugely unpopular probably why he lost in 76

02:13:38Yes

02:13:40Now looked upon as one of the better decisions in presidential history, I think by most people

02:13:48If he's thinking about well if I grant this pardon to Richard Nixon

02:13:52Could I be investigated myself for obstruction of justice on the theory that I'm interfering with the investigation of Richard Nixon

02:14:00so this would fall into that small core area that I mentioned to Justice Kagan and Justice Gorsuch of

02:14:07Presidential responsibilities that Congress cannot regulate. How about President Obama's drone strikes?

02:14:13So the the Office of Legal Counsel looked at this very carefully and determined that number one

02:14:19The federal murder statute does apply to the executive branch

02:14:23The president wasn't personally carrying out the strike, but the aiding and abetting laws are broad and it determined that a public authority

02:14:31Exception that's built into statutes and that applied particularly to the murder statute because it talks about unlawful killing

02:14:39Did not apply to the drone strike

02:14:40So this is actually the way that the system should function the Department of Justice takes criminal law very seriously

02:14:47It runs it through the analysis very carefully with established principles

02:14:51It documents them it explains them and then the president can go forward in accordance with it

02:14:56And there is no risk of prosecution for that course of activity

02:15:00Thank you for your answers

02:15:02Justice Barrett. Mr. Dreeben, I want to pick up with that public authority defense

02:15:06so I'm looking at the OLC memo that David Barron wrote that you cited in your briefs and

02:15:12He describes the public authority defense citing the model penal code. There are a few different definitions, but I'll just highlight this one

02:15:21Justifying conduct which is required or authorized by the law defining the duties or functions of a public officer

02:15:30The law governing the armed services or lawful conduct of war or any other provision of law imposing a public duty

02:15:38That sounds a lot like dividing a line between official and private conduct

02:15:43It's I think it's narrower and I recognize it's a defense not an immunity

02:15:47But when we look at when you look at the definition of it, are you acting within?

02:15:51The scope of authority conferred by law or discharging a duty conferred by law

02:15:55I think it's narrower than Blaston game narrower than Nixon versus Fitzgerald, but that's what it sounds like to me

02:16:01Do you agree or disagree?

02:16:02You know just fired. I certainly understand the intuition that when you act outside of your lawful authority

02:16:08He's kind of gone in a frolicking detour. You're no longer carrying it out

02:16:11I don't really think that that quite works for presidential activity

02:16:15The only way that he could have implemented the orders is by exercising his commander-in-chief

02:16:21Authority over the armed forces or his authority to supervise the executive branch those seem like core executive acts to me

02:16:29There is such a possibility as an unlawful executive act

02:16:35I'm not sure that I understand your answer

02:16:37I mean I was thinking it seemed to me that in your briefs and today when you referred to the public authority defense

02:16:43You said that's one of the built-in protections and why immunity is not necessary because in some of these instances when the president

02:16:50Takes such actions that you know the courtsmen asking you might this result in criminal prosecution you say well

02:16:56He could raise this public authority defense

02:16:59And so I'm saying isn't this public authority defense if raised doesn't it sound like a defense that says well

02:17:05I had I was authorized by law to discharge this function and

02:17:10Therefore I acted lawful or I acted lawfully. Yes criminally liable correct

02:17:16Does that involve a look into motives kind of this is gets to what justice Gorsuch was asking you could you say I was

02:17:22Acting within the scope of my authority by granting a pardon

02:17:26Removing a cabinet officer, but then the public authority defense might not apply because you had a bad motive in doing so no

02:17:33I I don't think so just spirit. I think that it operates based on objective facts disclosed to

02:17:39Counsel counsel then provides the advice in this case the Department of Justice and

02:17:44It's an objectively valid defense. It's a complete defense to prosecution. So what would be so bad?

02:17:49I mean one thing that strikes me is different

02:17:51Well one thing that's obviously different between the public authority defense and immunity is an interlocutory

02:17:56Appeal and having it resolved at the outset what would be so bad about having a question like that?

02:18:03Resolved at the threshold having it be an immunity the same kind of question that could be brought up as a defense later

02:18:08But have it be brought up at the threshold as an immunity and then an interlocutory appeal would be available

02:18:13And it would be a freedom from standing trial

02:18:16But not a Jedi not a get-out-of-jail-free card. Yes, I understand that and I think that if the court

02:18:22Believed that that was the appropriate way to craft

02:18:26Presidential protections it has the authority to craft procedural rules that implement its article 2

02:18:35concerns that said

02:18:37Public authority is we're calling it a defense, but under many statutes. It's actually an exception to liability itself and

02:18:45what you're really talking about is trying the general issue and

02:18:49Generally in criminal cases even cases that involve First Amendment issues like threat statutes

02:18:56The jury is the determinant of the facts and I have a little bit of difficulty

02:19:01With the idea of trying the whole public authority

02:19:05Issue separately to the judge and having that go up on interlocutory appeal with review of facts

02:19:11Before you could ever get it forward into a criminal case

02:19:15That said if I would prefer a regime in which the court

02:19:22altered some of the procedural rules surrounding the president then a

02:19:27Total absolute blanket immunity that takes away the possibility of criminal prosecution

02:19:34Even if it was a core violation of the statute in the teeth of Attorney General advice and has no

02:19:40Overriding public you think it has to be a jury question

02:19:43And I mean I let's see I wasn't necessarily

02:19:45Proposing actually treating it as a defense that was done at the outset and then subject to interlocutory appeal I was proposing

02:19:53What about an immunity doctrine that drew from the public authority defense that the Department of Justice thinks would otherwise apply

02:19:59So just just go with me on that for a minute

02:20:02Why would it be so bad for it not to be a jury question?

02:20:05I mean it seems to me that some of these article two concerns would be

02:20:08Exacerbated by having it go to a jury rather than a judge. So I think some of them are

02:20:15Judge questions that could be resolved in the face of the indictment if the Department of Justice ever returned an indictment that said

02:20:22The issuance of this pardon or this series of pardons

02:20:26constituted obstruction of justice

02:20:29Had a little difficulty

02:20:31Hypothesizing it but a motion could be made on the face of the indictment that says

02:20:35Article two precludes Congress from regulating these activities the indictment needs to be dismissed

02:20:39And if the court wished to attach to that kind of a rule

02:20:45interlocutory appeal then

02:20:47That that would be a lesser safeguard than the the one that my friend is proposing here other kinds of defenses

02:20:55Though really do intersect with the general issue and for those I have a much greater

02:21:01Time seeing how the court could implement that and would there be costs in going to trial?

02:21:07Yes, there is no perfect system here

02:21:11We are trying to design a system that preserves the effective functioning of the presidency and the accountability of a former president

02:21:18Under the rule of law and the perfect system that calibrates all of those values

02:21:24Probably has not been devised. I think that the system that we have works pretty well

02:21:28Maybe it needs some a few ancillary rules. It is different from the radical proposal of my friend. I agree

02:21:35Let me ask you about state prosecutions

02:21:38Because if the president has some kind of immunity that's implicit in article two

02:21:44Then that immunity would protect him and from state prosecutions as well

02:21:49a lot of the protections that you're talking about are internal protections that the federal government has

02:21:55Protections in the Department of Justice which obviously are not applicable at the many many many many

02:22:00State and local jurisdictions across the country. What do you have to say to that?

02:22:05So that raises a supremacy clause issue and the court would run a supremacy clause analysis

02:22:11That would probably start with basic principles like McCulloch versus, Maryland

02:22:16The states do not have the authority to burden federal functions and would then kind of move through

02:22:24Inrie-Nagel where the court said that a state murder

02:22:27Prosecution of a federal official guarding a Supreme Court justice and who fired a shot was not permissible

02:22:33If the court thought that you needed a more categorical rule for the states

02:22:39I think the supremacy clause certainly leaves it within the court's prerogative to determine that

02:22:45The president unlike all other officials deserves more of a robust federal defense than what I have just described

02:22:51It would still be a defense and in the states it wouldn't be I mean

02:22:55Well, that's my point like that, you know, it's one thing to say. Well the president they're not going to be these

02:23:01Prosecutions that are politically motivated the things that Justice Kavanaugh was referring to that might be the danger of this system

02:23:08One thing that we have to worry about that might not carry the day, but you know, that's a concern

02:23:12It's totally different when you take it outside of the Department of Justice and its structures

02:23:17And then you throw it out elsewhere the idea across across the states the idea of an immunity

02:23:23I think has a lot more purchase if you're talking about something that protects the former president from standing trial and the stake in state

02:23:30and local level

02:23:31So I I don't know that you would have to design a system in which the president would have to stand trial at the state

02:23:37And local level it's certainly within the court's authority as a matter of supremacy clause law to find an immunity

02:23:44But we we have been talking here about some length on the distinction between official acts and private acts

02:23:52That will have to be determined by some sort of a process any

02:23:56Immunity defense that the court announces can still be met by a state assertion that we're prosecuting private conduct

02:24:04You're gonna have to have some process

02:24:05I think having some legal process is not a reason to cast aside a

02:24:11Nuance system that actually looks at what protections are necessary as opposed to what would provide the absolute maximum

02:24:19Insulation for former presidents, even if we acknowledge that it's highly prophylactic

02:24:24Totally agree, and I wasn't actually contrasting the absolute immunity rule

02:24:27I was saying that if there was some sort of official private their consequences towards about making immunity

02:24:33Okay, and since you bring up the private acts, this is my last question. So I had asked mr

02:24:39Sauer about on page 46 and 47 of your brief

02:24:42Yes, you say even if the court were inclined to recognize some immunity for a former president's official acts

02:24:48It should remand for trial because the indictment alleges substantial private conduct

02:24:52Yes, and you said that the private conduct would be sufficient

02:24:55Yes, the special counsel has expressed some concern for speed and wanting to move forward. So, you know the normal process

02:25:03What mr

02:25:04Sauer asked would be for us to remand if we decided that there were some

02:25:08Official acts immunity and to let that be sorted out below

02:25:12It is another option for the special counsel to just proceed based on the private conduct and drop the official

02:25:19Conduct well two things on that just part first. First of all, there's really an integrated conspiracy here that had different components as

02:25:27alleged in the indictment working with with private lawyers to achieve the goals of the fraud and as I said before the

02:25:36Petitioner reaching for his official powers to try to make the conspiracies more likely to succeed

02:25:42We would like to present that as an integrated picture to the jury

02:25:46So that it sees the sequence and the gravity of the conduct and why each step occurred

02:25:51That said if the court were to say that the fraudulent elector scheme is private

02:25:57Reaching out to state officials as a candidate is private trying to exploit the violence after January 6th by calling

02:26:04Senators and saying please delay the certification proceeding is private campaign activity

02:26:10We still think contrary to what my friend said that we could introduce the interactions with the Justice Department

02:26:16the efforts to pressure the vice president

02:26:19for their evidentiary value as showing the

02:26:23Defendants knowledge and intent and we would take a jury instruction that would say you may not impose

02:26:29Criminal culpability for the actions that he took however, you may consider it insofar as it bears on knowledge and intent

02:26:37That's the usual rule with protected speech for example under Wisconsin versus Mitchell

02:26:42My friend analogizes this to the speech or debate clause, but we don't think the speech or debate clause has any applicability here

02:26:49It's a very explicit

02:26:50constitutional protection that says

02:26:53Senators and representatives shall not be questioned in any other place. So it carries an evidentiary component that's above and beyond

02:27:00Whatever official act immunity he is seeking and the last thing I would say on this is we think that the concerns about the

02:27:07use of evidence of

02:27:08Presidential conduct that might otherwise be official and subject to executive privilege is already taken care of by United States versus Nixon that

02:27:17balances the president's interest in confidentiality against the need of the judicial system for all available facts to get to the truth and

02:27:25Once that has been overcome we submit the evidence can be used even if culpability can't rest on it. Thank you

02:27:32Justice Jackson just to pick up where justice Barrett left off

02:27:35I think I heard you say that it even if we decide here something a rule that's not the rule that you prefer

02:27:44That is somehow separating out private from official acts and saying that that should apply here

02:27:52There's sufficient

02:27:54Allegations in the indictment in the government's view that fall into the private acts bucket that the case should be allowed to proceed

02:28:01Correct, because in an ordinary case, it wouldn't be stopped just because some of the acts are allegedly

02:28:09Immunized even if people agree that some are immunized if there are other acts that aren't the case would go forward. That is right

02:28:17All right

02:28:19Going back to the clear statement

02:28:22Argument, I'm struggling with that argument because my understanding was that

02:28:27When a charged criminal statute is read narrowly in the presidential context to not apply to the president

02:28:35a

02:28:36Constitutional question is being avoided so that you're doing that to avoid having to deal with the constitutional question. So

02:28:44What is the constitutional question that is being avoided in those kinds of situations a serious one?

02:28:50This is just an application of this court's ordinary construction of criminal statutes that if there is an available

02:28:58Interpretation that would avoid a serious constitutional question the court's preferences, right and the nature I guess I'm going at

02:29:04What is what is my understanding?

02:29:06Is that what is being avoided in that situation is the question of whether a former president or you know?

02:29:13Can be held criminally liable for doing the alleged act that is being asserted in that statute consistent with the Constitution

02:29:21So we look at the statute

02:29:22It's got some elements in it and we are saying well

02:29:25Geez, if this statute and those elements apply to the president's conduct in this situation

02:29:32We'd have to answer the question. Can the president be held liable consistent with the Constitution for that behavior?

02:29:40Is that right? So the first step in that analysis

02:29:43I just want to yes. Yes, but the first step is okay

02:29:45Is there ambiguity and these statutes apply to any person they apply to whoever there's no ambiguity in those phrases

02:29:53This court in Nardone versus United States

02:29:56Concluded that similar words any person yes apply to government officials. All right

02:30:02Well assume let's just assume that we I guess I'm just trying to get at we're avoiding a constitutional question

02:30:08If we do that in in the ordinary case

02:30:11And and what's confusing to me about this case is that we're not being asked to avoid the constitutional question

02:30:17in fact

02:30:18The question of whether or not the president can be held liable consistent with the Constitution or does he have?

02:30:25Immunity is the question that's being presented to us. So I don't understand how the clear statement kind of

02:30:32Analysis even works

02:30:34It seems completely

02:30:35Tautological to me for us to hold that presidents cannot be prosecuted under any criminal statute without a clear statement from

02:30:44Congress to avoid the question of whether or not the Constitution allows them to be prosecuted

02:30:50We'd have to have a reason right? I mean we'd have to have a rationale for applying the clear statement rule

02:30:58Would have to have some rationale that's not evident in either the existing doctrine or the text and just one data point for the court

02:31:05In thinking about how the clear statement rule works in the United States versus Sun Diamond

02:31:11It is a case about gratuities that the court is probably familiar with

02:31:15Justice Scalia wrote an opinion for a unanimous court in which he used a hypothetical

02:31:20About what would happen if the president received a sports replica jersey at a typical White House event

02:31:26Would that violate section?

02:31:28201 C and the court offered a construction that it had to be for because an official act to avoid that problem

02:31:35I think if there was such a well-received understanding that presidents are not included in general federal criminal law

02:31:43Unless the president is specifically named which he is not in section 201

02:31:48Justice Scalia would have thought of that and some member of the court would have reacted and none did

02:31:54All right, let me go on to ask about

02:31:57What you take the petitioners position to be in this case because we've had a lot of talk about drawing the lines

02:32:06Justice Kavanaugh justice Gorsuch suggested that we should be thinking about blasting game and

02:32:13That within the first we have private versus official and then within official now

02:32:18We have something about core acts versus other acts as we try to figure out

02:32:23You know at what level the president is going to have immunity

02:32:27But I took the petitioners argument in this case not to be inviting us to engage in that kind of analysis

02:32:34I thought he was arguing that all official acts get immunity. And so I didn't

02:32:41understand us to be

02:32:43Having to drill down on which official acts do and so my question is why isn't it enough?

02:32:51For the purposes of this case given what the petitioner has argued to just answer the question of whether all

02:32:58official acts get immunity

02:33:02That that is enough and if the court

02:33:04Answers that question the way that the government has submitted that resolves the case

02:33:09I want to make a clarification that I may have left the court with some uncertainty about the official act

02:33:17Analysis that my friend is talking about is the Fitzgerald versus Nixon outer perimeter test

02:33:23Which is extremely protective of the president. It's not looking at core versus ancillary

02:33:29It's saying everything the president does is a target for private civil lawsuits

02:33:33That is not a great thing and therefore they are all cut off. That's an absolute immunity kind of concept, right?

02:33:39Anything that's official in the outer perimeter is not subject to liability

02:33:45That is right. And so we don't have to then go well, okay, we have the bucket of official now

02:33:50Let's figure out which within that might be subject to liability not on the theory of absolute immunity, correct?

02:33:56Neither on the theory of absolute immunity or on our theory on his theory. Everything's protected on our theory

02:34:03There is no immunity, but this is where I would draw the distinction. There are as applied

02:34:08Constitutional challenges that you run through the Youngstown framework and this court's customary

02:34:13Method of analysis and you determine whether there's a infringement of article two

02:34:18So what you're saying is even if we reject the absolute immunity theory, it's not as though the president is, you know

02:34:25Doesn't have the opportunity to make the kinds of arguments that arise as at the level of you know

02:34:31This particular act or this particular statute has a problem in

02:34:37Retrospect, I think I hear you saying we should not be trying to in the abstract set up those boundaries ahead of time as a

02:34:44function of sort of blanket immunity allow each

02:34:49Allegation to be brought and then we would decide in that context

02:34:52Yes with the additional note that petitioner has never made that argument

02:34:56And I think it would be up to a district court to decide whether to go that route at this point in the litigation

02:35:03He's put all of his eggs in the absolute immunity basket

02:35:07All right

02:35:08And if we if we invite, you know

02:35:10If we see the question presented as broader than that and we do say let's engage in the core

02:35:16official versus not core and try to figure out the line

02:35:22Is this the right vehicle to hammer out that test I mean I'd understood

02:35:28That the most if not all but most of the allegations here

02:35:33There's really no plausible argument that they would fall into core versus not such that they are immune

02:35:41We don't think there are any core

02:35:43Acts that have been alleged in the indictments that would be off-limits as a matter of article two

02:35:48So if we were going to do this kind of analysis try to figure out what the line is

02:35:53we should probably wait for a vehicle that actually presents it in a way that allows us to test the different sides of the

02:36:00The standard that we'd be creating right? I don't see any need in this case for the court to embark on that analysis

02:36:07All right

02:36:07the final sort of set of questions that I have have to do with what I do take as a very legitimate concern about

02:36:17Prosecutorial abuse about future presidents being

02:36:21Targeted

02:36:22For things that they have done in office. I I take that concern

02:36:26I think it's a real thing, but I wonder whether some of it might also be

02:36:33Mitigated by the fact that existing administrations have a self-interest in

02:36:39protecting the presidency that they

02:36:42Understand that if they go after the former guy soon

02:36:46They're going to be the former guy and they will have created precedent that will be problematic

02:36:51so I wonder if you might comment on whether some of the caution from the Justice Department and the

02:36:56Prosecutors and whatnot comes from an understanding that they will soon be former presidents as well

02:37:02I think absolutely and I would locate this as a

02:37:07Structural argument that's built into the Constitution itself the executive branch

02:37:12I think as this court knows has executive branch interests that it at times asserts in opposition to

02:37:19Congress so that the proper functioning of the president is

02:37:24protected and I believe that that value would be operative and is

02:37:29Operative in anything as momentous as charging a former president with a crime and I would also say I think and ask you to comment

02:37:36on you know

02:37:37Presidents are concerned about being investigated and prosecuted and it chills to some extent their

02:37:45You know ability to do what they want in office and that's a concern on one side

02:37:51But can you comment on the concern about having a president?

02:37:56Unbounded while in office a president who knows that he does not have to ultimately

02:38:02Follow the law because there is really nothing more than say political accountability in terms of impeachment

02:38:09I mean we have amicus briefs here from Professor Lederman for example

02:38:13Who says you know a president would not be prohibited by statute from perjuring himself under oath about official matters

02:38:20from corruptly altering destroying or concealing documents to prevent them from being used in an official proceeding from

02:38:27Suborning others to commit perjury from bribing witnesses or public officials

02:38:31And he goes on and on and on about the things that a president in office with the knowledge that they have no criminal

02:38:38Accountability would do I see that is a concern that is at least equal to the president being

02:38:45Worried so worried about criminal prosecution that he you know is a little bit limited in his ability to function

02:38:52So can you talk about those competing concerns?

02:38:55So justice Jackson

02:38:57I think it would be a sea change to announce a sweeping rule of immunity that no president has

02:39:03Had or has needed. I think we have also had a perfectly functioning

02:39:09system that hasn't seen occasional episodes of

02:39:14Presidential misconduct the Nixon era is the paradigmatic one the indictment in this case

02:39:20Alleges another for the most part I believe that the legal regime and the constitutional regime that we have

02:39:28Works and to alter it poses more risks. Thank you. Thank you. Thank you counsel

02:39:35rebuttal mr. Sauer I

02:39:37Have nothing further your honor Thank You counsel counsel the case is submitted

02:39:43The Honorable Court is now adjourned until Thursday the 9th of May at 10 o'clock

02:39:50You

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

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