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

Forbes Breaking News
25 Apr 2024159:51

Summary

TLDRThe provided transcript captures a complex legal discourse, likely from a Supreme Court hearing, where the issue of presidential immunity from criminal prosecution is under debate. The dialogue involves various justices and counsels delving into the constitutionality of prosecuting a sitting or former president for official acts. The core argument presented by the petitioner is that all official acts by a president should be granted immunity, a stance that could impact the balance of power and the ability to hold the executive branch accountable. The government's side argues against absolute immunity, suggesting that it could lead to unchecked presidential power and abuse. The justices explore hypotheticals, the historical context of the Constitution, and the potential for future prosecutorial abuse. The discussion also touches on the implications for the presidency and democratic stability, with an emphasis on the need for a careful balance between enabling bold executive action and preventing executive overreach.

Takeaways

  • πŸ“œ The discussion revolves around the concept of presidential immunity, specifically whether a sitting or former president can be criminally prosecuted for official acts.
  • πŸ‡ΊπŸ‡Έ Historically, no U.S. president has been prosecuted for official acts during their tenure, and the framers of the constitution viewed a strong executive as crucial for liberty.
  • βš–οΈ The argument is made that charging a president could lead to de facto blackmail and extortion by political rivals, potentially distorting decision-making processes.
  • 🚫 The original meaning of the executive vesting clause and a 200-year tradition support the notion that prosecuting a president for official acts is incompatible with the U.S. constitutional structure.
  • πŸ€” The source of presidential immunity is principally rooted in Article 2, Section 1 of the Constitution, which outlines the executive powers and has been interpreted to include a broad principle of immunity.
  • πŸ‘‰ The distinction between 'official acts' and 'private conduct' is pivotal. Official acts are those that fall within the scope of the president's constitutionally defined powers and duties.
  • 🀝 Interactions between the president and other branches of government, such as communicating with Congress or the public, are considered official acts and thus potentially immune.
  • 🚨 Concerns are raised about the implications of removing immunity, including the potential for future presidents to act with impunity, knowing they cannot be criminally prosecuted after leaving office.
  • πŸ›‘οΈ It is suggested that existing legal safeguards, such as impeachment and the advice of the Attorney General, provide sufficient protection against presidential misconduct.
  • πŸ“– The Office of Legal Counsel (OLC) opinions and historical precedents, such as the case of Marbury v. Madison, are cited as supporting the existence of some form of immunity for the president.
  • πŸ›οΈ The Supreme Court's role in interpreting the Constitution and the potential for it to craft procedural rules that balance the functioning of the presidency with the rule of law is acknowledged.

Q & A

  • What is the main argument presented by the speaker regarding presidential immunity from criminal prosecution?

    -The speaker argues that without presidential immunity from criminal prosecution, there can be no presidency as known for 234 years in American history. They contend that the threat of prosecution post-office could distort presidential decision-making and lead to de facto blackmail and extortion by political rivals.

  • What historical precedent is mentioned to support the argument for presidential immunity?

    -The speaker refers to the historical tradition spanning 200 years where no president has been prosecuted for their official acts, and the original understanding of the executive vesting clause, which is seen as supporting a broad principle of immunity for the president's official acts.

  • How does the speaker address the question of what constitutes an 'official act'?

    -The speaker points to two cases, Fitzgerald against Nixon and Brewster, which provide guidance on what constitutes an official act. They argue that the court should look at the level of specificity at which the acts are described and whether they fall within the president's official responsibilities.

  • What is the significance of the 'executive vesting clause' in the context of this argument?

    -The 'executive vesting clause' of Article 2 Section one is identified as the principal root of the immunity. It is interpreted as encompassing not only the executive powers laid out explicitly but also all the powers originally understood to be included therein.

  • How does the speaker respond to hypothetical scenarios where a president might commit a crime?

    -The speaker suggests that even in hypothetical scenarios where a president commits a crime, such as ordering an assassination for personal gain, the president would still be immune from prosecution for the official act of making an appointment, as the act of accepting a bribe is not considered an official act.

  • What is the speaker's stance on the potential for a president to be charged for actions taken during their term?

    -The speaker argues that prosecuting a president for official acts is an innovation with no foothold in history or tradition and is incompatible with the constitutional structure. They assert that the president should not face criminal liability for official acts taken during their term.

  • What is the argument regarding the source of presidential immunity?

    -The argument is that the source of presidential immunity is principally rooted in the executive vesting Clause of Article 2 Section one of the Constitution, which is interpreted to include all powers originally understood to be included therein.

  • How does the speaker differentiate between official and private acts of the president?

    -The speaker suggests that official acts are those that fall within the president's official responsibilities and powers, while private acts are those done for personal gain or outside the scope of the president's official duties.

  • What is the significance of the 'Outer Perimeter test' mentioned in the transcript?

    -The 'Outer Perimeter test' is a legal analysis used in the case Fitzgerald against Nixon, which provides guidance on determining what constitutes an official act of the president that may be protected by immunity.

  • What is the position of the speaker on the potential for a president to be prosecuted after leaving office?

    -The speaker argues against the idea that a president should be prosecuted after leaving office for their official acts, asserting that such a threat would distort presidential decision-making and lead to de facto blackmail and extortion.

  • How does the speaker justify the need for immunity in the context of the presidency?

    -The speaker justifies the need for immunity by arguing that it is essential for the president to make bold and fearless decisions without the looming threat of prosecution, which could be used as a political tool by rivals.

  • What is the speaker's view on the implications of the Court's decision on presidential immunity?

    -The speaker believes that the Court's decision could have far-reaching implications beyond the specific case, affecting the balance of powers, the ability of the president to perform their duties, and the potential for political manipulation of the legal process.

Outlines

00:00

πŸ˜€ Presidential Immunity and the Constitution

The paragraph discusses the concept of presidential immunity from criminal prosecution. It emphasizes that no president has been prosecuted for official acts in the 234-year history of the United States. The framers of the constitution intended an energetic executive, and the threat of post-office imprisonment could distort presidential decision-making. The speaker argues against prosecuting a president for official acts, stating it is incompatible with the constitutional structure and historical tradition.

05:00

πŸ›οΈ The Source of Presidential Immunity

The source of presidential immunity is rooted in the executive vesting clause of Article 2, Section 1 of the Constitution. The speaker suggests that the immunity extends to all powers originally understood to be included therein. The discussion also references the Outer Perimeter test from Fitzgerald v. Nixon, highlighting how it provides guidance on determining what constitutes an official act.

10:01

πŸ€” Determining Official Acts vs. Private Conduct

The paragraph delves into the complexity of distinguishing between a president's official acts and private conduct. It poses hypothetical situations involving past presidents and potential charges against them. The conversation suggests that accepting bribes and other such acts for personal gain do not constitute official acts, and thus, do not fall under immunity.

15:01

🚫 Indictment and the Heart of Presidential Powers

The discussion addresses the indictment's premise that Congress, through vague statutes, can regulate the president's exercise of powers, such as the appointment and removal power. The speaker argues against this, stating that it goes to the heartland of presidential powers and that the indictment ties together a series of official acts with a private aim or purpose, which could be alleged in virtually any indictment.

20:04

πŸ€” The Nature of Presidential Motivation and Acts

The paragraph explores the motivation behind a president's actions, particularly when those actions could be seen as personal gain rather than official responsibility. It questions whether immunity should apply if actions are taken for personal reasons rather than in the public interest. The speaker also discusses the historical context and the lack of a clear statement in the Constitution regarding immunity.

25:05

πŸ“œ The Issue of Clear Statutes and Presidential Conduct

The speaker disputes the allegations of fraudulent activities and argues that even if the president's actions are deemed official, they should not be included in the indictment if they are immune. The paragraph also discusses the potential need for a clear statement in statutes that criminalize the president's official acts, emphasizing the importance of such clarity in the legal framework.

30:06

🏒 Official vs. Private Acts in Presidential Conduct

The paragraph focuses on the distinction between official and private acts in the context of the president's conduct. It argues that private acts should not be conflated with official ones and that the latter should be protected. The discussion also touches on the potential consequences of acknowledging private acts in the indictment and how it affects the prosecution's case.

35:07

πŸ€” The Consequences of Presidential Immunity

The speaker discusses the implications of granting or denying immunity to a president. It raises concerns about the potential for future presidents to act with impunity if they know they cannot be criminally prosecuted after leaving office. The paragraph explores the balance between allowing bold presidential action and preventing abuse of power.

40:09

πŸ›οΈ The Constitutional Framework and Executive Power

The paragraph examines the constitutional framework surrounding executive power and the president's responsibilities. It addresses the idea that the president is not above the law and must act in accordance with it. The discussion also considers the various checks and balances in place to prevent executive overreach and the potential consequences of removing the threat of criminal prosecution.

45:10

πŸ€” The Role of Motivation in Presidential Actions

The discussion explores the role of motivation in determining whether a president's actions are official or private. It questions whether a president should be immune from prosecution even if their actions are deemed official but motivated by personal gain. The paragraph also debates the potential risks of allowing personal motives to influence the application of criminal laws to presidential conduct.

50:11

πŸ“œ The Clear Statement Rule and its Application

The speaker challenges the clear statement rule, arguing that it is not applicable in the context of the case. The paragraph discusses the need for clarity in statutes when they apply to the president and the potential implications of such clarity for the balance of power between the executive and legislative branches.

55:13

πŸ›οΈ The Balance of Power and Presidential Accountability

The final paragraph emphasizes the importance of balancing the power of the presidency with the need for accountability. It discusses the potential risks of both chilling presidential action with the threat of prosecution and allowing a president to act without fear of legal consequences. The speaker argues for a nuanced approach that respects the constitutional framework and the role of the courts in interpreting statutes.

Mindmap

Keywords

πŸ’‘Presidential Immunity

Presidential immunity refers to the legal protection that a sitting or former president may have against criminal prosecution. In the context of the video, it is a central theme as the discussion revolves around whether a president is immune from prosecution for official acts while in office or after leaving office, and the potential consequences of such immunity for the functioning of the presidency and the legal system.

πŸ’‘Constitutional Structure

The constitutional structure refers to the framework of a nation's government as defined by its constitution, including the separation of powers and checks and balances. In the video, it is mentioned in relation to the president's powers and the potential for misuse of those powers, emphasizing the importance of the system of governance in preventing abuses and ensuring accountability.

πŸ’‘Clear Statement Rule

The clear statement rule is a principle in statutory interpretation where a court will not find a statute applicable to the president unless Congress has made a clear statement that it intends to apply. This rule is discussed in the video as a potential safeguard against the application of criminal statutes to the president's official acts.

πŸ’‘Impeachment

Impeachment is a process by which a legislative body brings charges against a high official of government. It is mentioned in the video as a political remedy for presidential misconduct, distinct from criminal prosecution, and as a potential prerequisite for criminal liability after a president has left office.

πŸ’‘Article II Powers

Article II powers refer to the powers vested in the executive branch of the U.S. government by the Constitution. These powers are discussed in the video in the context of determining which presidential actions may be protected from criminal liability and which may not, with a focus on whether certain acts are considered 'official' and thus potentially immune.

πŸ’‘Separation of Powers

Separation of powers is a model for the governance of a state, wherein the state is divided into branches, each with separate and independent powers and areas of responsibility. The concept is invoked in the video to discuss the limits of presidential power and the role of the judiciary in reviewing the actions of the executive branch.

πŸ’‘Executive Vesting Clause

The executive vesting clause is a section of the U.S. Constitution (Article II, Section 1) that establishes the executive branch of government under the direction of the president. It is mentioned in the video as a potential source of the president's immunity from prosecution for official acts.

πŸ’‘Political Accountability

Political accountability refers to the responsibility of public officials to be answerable for their actions while in office, particularly through the electoral process or impeachment. The video discusses this in the context of a president who may believe they are above legal accountability, and the potential risks this poses to the rule of law.

πŸ’‘Structural Checks

Structural checks are mechanisms within a government's constitution that are designed to prevent any one branch or person from gaining too much power. In the video, they are discussed as a means of deterring presidential misconduct and ensuring that the president does not act in a manner that is above the law.

πŸ’‘Public Authority Defense

The public authority defense is a legal doctrine that may be invoked when a public official is charged with a crime based on actions taken within the scope of their official duties. It is discussed in the video as a potential safeguard against criminal liability for the president's official acts, contrasting with the concept of immunity.

πŸ’‘Prosecutorial Discretion

Prosecutorial discretion refers to the ability of a prosecutor to decide whether and how to prosecute a case within the bounds of the law. The video touches on this concept in the context of the Department of Justice's role in deciding whether to pursue criminal charges against a president or former president.

Highlights

The discussion emphasizes the importance of the presidency and the need for a president to make bold decisions without the looming threat of prosecution post-office.

The argument that prosecuting a president for official acts could lead to de facto blackmail and extortion by political rivals while in office.

Historical context provided, noting that no president has ever been prosecuted for official acts in the 234-year history of the United States.

The significance of the executive vesting Clause of Article 2 Section one as a potential source of presidential immunity.

The importance of distinguishing between official acts and private conduct when considering presidential immunity.

The potential implications of the court's decision on future presidencies and the balance of power.

The debate on whether the president's actions, even if for personal gain, should be immune from prosecution under the doctrine of official acts.

The examination of the original meaning of the executive vesting Clause and the framers' intent regarding presidential immunity.

The proposition that the lack of a clear statement in statutes suggests that Congress did not intend to apply laws to the president's official acts.

Discussion on the hypothetical scenario where a president orders an assassination for personal reasons and its relation to official immunity.

Concerns raised about the potential for future presidents to commit crimes with abandon, knowing they have immunity while in office.

The assertion that the impeachment clause serves as a prerequisite for criminal prosecution, thus protecting the office of the president.

The exploration of the concept that the president is not above the law and the checks and balances in place to prevent abuse of power.

The potential for a president to pardon themselves and the constitutional questions that this raises.

The argument that the president, like any other citizen, is subject to prosecution for personal acts and that official acts are protected by the Constitution.

The emphasis on the importance of the rule of law and the need for a president to act within the confines of the law while in office.

Transcripts

00:00

Mr

00:05

s Mr chief justice and may it please the

00:08

court without presidential immunity from

00:11

Criminal prosecution there can be no

00:13

presidency as we know it for 234 years

00:18

of American history no president was

00:20

ever prosecuted for his official

00:23

acts the framers of our constitution

00:26

viewed an energetic executive as

00:28

essential to securing Liberty

00:31

if a president can be charged put on

00:34

trial and imprisoned for his most

00:36

controversial decisions as soon as he

00:38

leaves office that looming threat will

00:41

distort the president's decision-making

00:43

precisely when bold and fearless action

00:45

is most

00:47

needed every current president will face

00:50

de facto blackmail and extortion by his

00:52

political Rivals while he is still in

00:56

office the implications of the Court's

00:59

decision here extend far beyond the

01:02

facts of this

01:04

case could President George W bush have

01:07

been sent to prison for obstructing an

01:09

official proceeding or allegedly uh

01:12

lying to Congress to induce war in

01:15

Iraq could President Obama be charged

01:18

with murder for killing US citizens

01:20

abroad by drone

01:22

strike could President Biden someday be

01:25

charged with uh unlawfully inducing

01:27

immigrants to enter the country

01:29

illegally for his border

01:31

policies the answer to all these

01:34

questions is no Prosecuting the

01:37

president for his official acts is an

01:39

innovation with no foothold in history

01:41

or tradition and incompatible with our

01:43

constitutional

01:45

structure the original meaning of the

01:47

executive vesting Clause the framer's

01:50

understanding and intent an unbroken

01:53

historical tradition spanning 200 years

01:56

and policy considerations rooted in the

01:57

separation of powers all Council against

02:00

it I welcome the Court's

02:03

questions uh mru to your last Point

02:06

could you be more precise as to the

02:08

source of this immunity the source of

02:11

the immunity is principally rooted in

02:12

the uh executive vesting Clause of

02:14

Article 2 Section one and how does that

02:16

happen uh that that the source of it

02:19

justice Thomas I think is as you

02:21

described in your separate opinion than

02:22

catovsky for example that the executive

02:25

vesting Clause does not include only

02:27

executive powers laid out explicitly

02:29

therein but it is all the powers that

02:30

were originally understood to be

02:32

included therein and marber against

02:35

Madison itself provides strong evidence

02:37

this kind of immunity a broad principle

02:39

of immunity that protects the

02:40

president's official acts from scrutiny

02:44

direct sitting in judgment so to speak

02:46

of the article three courts that that

02:48

matches the original understanding of

02:49

the exec how exactly would we determine

02:53

uh uh what the what an official Act is I

02:58

said I point the court to two cases for

03:00

that obviously Fitzgerald against uh uh

03:03

Nixon is the best guidance that the

03:06

Court gives where the court adopted the

03:08

Outer Perimeter test and this court

03:10

engaged an analys analysis there that's

03:13

very instructive here where it looked at

03:14

the level of specificity at which the

03:17

acts are described in in that case a

03:19

civil case here it would be the

03:20

indictment what if you have um let's say

03:23

the official Act is appointing

03:25

ambassadors and the President appoints a

03:27

particular individual to a country but

03:29

it's in exchange for a bribe somebody

03:31

says I'll give you a million dollars if

03:33

I made the ambassador to whatever how do

03:35

you analyze that that I think would fall

03:37

under this Court's uh discussion in

03:39

Brewster where the Court held with

03:40

respect to legislative acts that bribery

03:42

is not an official act which also

03:44

matches the court common law background

03:46

so the way that this court and Brewster

03:48

kind of sliced at the Joint was to say

03:51

accepting the bribe and the agreement to

03:52

sex the bribe are not official acts

03:54

that's private conduct an appointment

03:57

would not be would be essentially an

03:59

unrestrict power of this court that

04:00

Congress couldn't directly regulate it's

04:02

not accepting the bribe isn't an

04:04

official act but appointing an

04:05

ambassador is certainly within the

04:07

official responsibilities of the

04:08

president so how could you how how does

04:11

your official Acts or the official

04:15

acts border boundary um uh come into

04:19

play when it's going to be official uh

04:21

assuming that the president is Innocent

04:23

but the whole question is whether he's

04:25

going to be uh found innocent or guilty

04:28

uh again I think Brewster and Johnson uh

04:31

do address that or very persuasively at

04:33

least in a slightly different context

04:34

Brewster and Johnson say the indictment

04:37

has to be expunged of all the immune

04:39

official acts so there has to be

04:40

determination what's official what's not

04:42

official you expunged the official you

04:44

say okay we're Prosecuting because you

04:46

accepted a million dollars they're

04:47

supposed to say not say what it's for

04:49

because the what's for part is within

04:52

the uh president's official duties uh

04:54

there has to be we would say independent

04:56

source of evidence for that and keep in

04:58

mind that this indictment chares what

05:00

this court has described as unrestrict

05:02

powers of the president so the premise

05:04

The Logical premise of this indictment

05:06

is that Congress by passing vague and

05:08

general criminal statutes has purported

05:11

to directly regulate the president's

05:13

exercise of things like the exercise of

05:15

the appointment and removal power uh

05:17

things like his ability to speak

05:18

directly to the American public core

05:20

exercises of his authority under the

05:22

recommendations Clause to recommend to

05:24

Congress members of Congress the

05:26

measures he thinks necessary and

05:28

expedient so you have a indictment in

05:30

this case that goes right to the

05:31

heartland of the president's powers that

05:33

alleges a whole series of official acts

05:36

and tries to tie them together by saying

05:38

well there's a private aim or a private

05:40

purpose in that case and that's a

05:42

situation which of course could be

05:43

alleged in virtually any indictment

05:44

Council it can be alleged but it has to

05:47

be

05:48

proven mum in say is a concept long um

05:53

viewed as appropriate in law that there

05:55

are some things that are so

05:57

fundamentally evil that they have to be

06:00

protected

06:01

against now I

06:04

think and and your uh answer uh below

06:10

I'm going to give you a chance to say if

06:12

you stay by it if the president

06:15

decides that his

06:18

rival is a corrupt

06:21

person and he orders the military or

06:25

orders someone to assassinate him is

06:28

that within his official acts that for

06:31

which he can get immunity it would

06:33

depend on the hypothetical but we can

06:35

see that could well be an official act

06:36

it could and why because he's doing it

06:38

for personal reasons he's not doing

06:42

it at like President Obama is alleged to

06:45

have done it to protect the country from

06:48

a terrorist he's doing it for personal

06:51

gain and isn't that the nature of the

06:54

allegations here that he's not doing

06:57

them doing these acts in

07:00

furtherance of an

07:02

official responsibility he's doing it

07:05

for personal gain I I agree with that

07:08

characterization of the indictment and

07:09

that confirms immunity because the

07:12

characterization is that there's a

07:13

series of official acts that were done

07:14

for an un because immunity says even if

07:18

you did it for personal gain we won't

07:22

hold you

07:24

responsible what do you how could that

07:27

be that's an extremely strong Doctrine

07:29

in this Court's case law and cases like

07:31

Fitzgerald well we go back to Justice

07:33

Thomas's question which was where does

07:36

that come

07:37

from there are mik here who tell us that

07:40

the

07:41

founders actually talked about whether

07:44

to Grant immunity to the president and

07:48

in fact they had had state constitutions

07:51

that granted some criminal immunity to

07:54

Governors and yet they didn't take it up

07:57

instead they F they pass an impeachment

08:00

Clause that basically says you can't

08:03

remove the president from from office

08:06

except by a uh trial in the Senate but

08:11

you can impeach him

08:13

after so or you can impose criminal

08:17

liability we would be

08:19

creating a situation in which we would

08:22

be saying is this is what you're asking

08:24

us to

08:25

say which is that a president is

08:28

entitled not to make a

08:32

mistake but more than that a pre

08:36

president is entitled for total personal

08:39

gain to use the trappings of his

08:43

office that's what you're trying to get

08:45

us to

08:47

hold without facing criminal liability

08:51

your honor I would say three things in

08:52

response to that first the doctrine that

08:55

immunity does not turn on the allegedly

08:58

improper motivation our purpose is

09:00

something that this court has reaffirmed

09:01

in at least nine or 10 that's absolute

09:03

immunity but qualified immunity does say

09:06

that whatever act you take has to be

09:09

within what a reasonable person would do

09:13

I'm having a hard time

09:15

thinking that creating false documents

09:19

that submitting false documents that

09:22

ordering the assassination of AAL that

09:25

accepting a bribe and countless other

09:28

laws that could be broken for personal

09:30

gain that anyone would say that it would

09:33

be reasonable for a president or any

09:36

public official to do that your honor as

09:39

this court said very persuasively in

09:41

Fitzgerald that the allegation that this

09:43

particular act would be done for an

09:47

unlawful purpose or was unlawful could

09:49

be made in every case and therefore if

09:51

that were the doctrine that the

09:53

allegation of improper purpose is what

09:55

deprives the objective acts of their

09:57

immunity then the would have no purchase

10:01

and that's reflected in many of the

10:02

other courts cases isn't isn't the work

10:05

though of the improper motive uh at

10:09

least in the absolute immunity context

10:11

to tell us what are official acts and

10:13

what are not I mean I had understood

10:15

that even in the ab first of all your

10:18

ask is absolute immunity isn't it

10:20

principal position that's your your your

10:22

position is you want the same kind of

10:24

doctrine that we've applied in other

10:26

contexts when we say an official has

10:27

absolute immunity um and my

10:30

understanding is that when we say that

10:31

we mean for their official acts is that

10:35

right yes we okay so any official acts

10:39

then in that world the real

10:41

decisionmaking from the court standpoint

10:44

is whether or not something is an

10:45

official act or not correct uh that is

10:48

an important determination by all means

10:50

I mean that's the determination in the

10:52

absolute immunity world because if you

10:54

determine that it's an official act then

10:56

the principle is that you get immunity

10:57

for it correct that is correct all right

11:00

so my question and I think the Chief

11:02

Justice may have asked this at the

11:03

beginning is how do you determine what

11:06

or maybe Justice Thomas how do you

11:07

determine what is an official act and

11:10

when we're talking about the kinds of

11:11

scenarios that Justice Sodor brought up

11:14

one could say that when the president is

11:16

using the trappings of his office to

11:18

achieve a personal uh uh gain then he's

11:23

actually not acting officially even if

11:26

the doctrine was absolute immunity so

11:28

what do you say about that two things in

11:30

response to that first to the last point

11:32

that allegation that this was really

11:34

motivated by an improper private purpose

11:37

could be made in every single case no I

11:39

understand that but but but it would

11:40

have to be made I'm I'm just trying to

11:41

assess even if we had the doctrine of

11:44

absolute immunity that same allegation

11:47

and the facts related to it would come

11:49

in because the person would be arguing

11:51

that he was not acting in His official

11:53

capacity he wasn't doing something

11:55

official he was doing it personal

11:57

correct the I agree age the the

12:00

objective or I'm not sure I agree but

12:02

but the point I would make response to

12:03

that is in Fitzgerald against Nixon this

12:06

court emphasized that that would result

12:07

in an intrusive uh discussion or

12:09

determination of the president's

12:11

personal motives for every official act

12:13

and again this is not just in the case

12:15

of the presidency right can I just ask

12:16

you another another quick question U

12:18

before my colleagues take it over here

12:21

um at the beginning of your analysis

12:23

when you were giving your opening

12:25

statements you were talking about um you

12:28

know the you suggested that the lack of

12:30

immunity and the possibility of

12:33

prosecution in the presidential context

12:35

is like an innovation um and I

12:37

understood it to be the status quo I

12:40

mean I understood that every president

12:43

from the beginning of time essentially

12:45

um has understood that there was a

12:47

threat of prosecution if for no other

12:49

reason than the the Constitution

12:51

suggests that they can be prosecuted

12:53

after impeachment um that uh you know

12:56

the office of legal councel has said

12:58

forever that presidents are amable to a

13:00

threat of prosecution and they have

13:02

continued to function and do their jobs

13:05

and do all the things that presidents do

13:07

so it seems to me that you are asking

13:09

now for a change in what the law is

13:11

related to immunity I would quote from

13:15

what Benjamin Franklin said at the

13:17

Constitutional Convention which I think

13:18

reflects best the founders original

13:21

understanding and intent here which is

13:23

at the Constitutional Convention

13:24

Benjamin Franklin said history provides

13:27

one example only of a chief magistrate

13:30

who was subject to public Justice

13:32

Criminal prosecution and everybody cried

13:35

out against that as no I understand but

13:37

since Benjamin Franklin everybody has

13:39

thought including the presidents who've

13:41

held the office that they were taking

13:43

this office subject to potential

13:45

criminal prosecution no I don't I see

13:47

the opposite I see all the evidence

13:49

going the other way Marbury against

13:51

Madison Mississippi against Johnson

13:52

discussed this broad immunity principle

13:54

that naturally what was up with the

13:56

pardon what was up with the pardon for

13:57

President Nixon I think

13:59

uh if everybody thought that presidents

14:02

couldn't be prosecuted then what what

14:03

was that about well he was under

14:05

investigation for both private and

14:06

public conduct at the time official acts

14:08

and private conduct I think everyone has

14:10

properly understood that the president

14:11

since like President Grant's Carriage

14:13

writing incident everyone has understood

14:15

that the president could be prosecuted

14:17

counil on on that score you there does

14:20

seem to be some common ground between

14:22

the you and your colleague on the other

14:24

side that no man's Above the Law and

14:28

that the president can't can be

14:30

prosecuted after he leaves office for

14:32

his private conduct is that right we

14:34

agree with that and then the question

14:37

becomes as we've been exploring here

14:38

today A little bit about how to

14:40

segregate private from official conduct

14:43

that may or may not uh enjoy some

14:46

immunity and we I'm sure we're going to

14:48

spend a lot of time exploring that but

14:51

uh the DC circuit in blazing game chief

14:55

judge um there joined by the panel

14:59

express some views about how to

15:01

segregate private conduct for which no

15:04

man is above the law from official acts

15:07

do you have any thoughts about the test

15:09

that they came up with there yes we

15:11

think in the main that test especially

15:13

if it's understood through the lens of

15:14

Judge cis's separate opinion is a very

15:17

persuasive test it would be a great

15:18

source for this court to rely on in

15:21

drawing this line and it emphasizes the

15:23

breadth of that test it talks about how

15:25

uh uh actions that are you know

15:27

plausibly connected to the president's

15:29

official Duties are official acts and it