BREAKING NEWS: The Supreme Court Hears Oral Arguments In Trump Immunity Claim In 2020 Election Case
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
- 📜 The discussion revolves around the concept of presidential immunity, specifically whether a sitting or former president can be criminally prosecuted for official acts.
- 🇺🇸 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.
- ⚖️ 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.
- 🤔 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.
- 👉 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.
- 🛡️ It is suggested that existing legal safeguards, such as impeachment and the advice of the Attorney General, provide sufficient protection against presidential misconduct.
- 📖 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.
- 🏛️ 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
😀 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.
🏛️ 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.
🤔 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.
🚫 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.
🤔 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.
📜 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.
🏢 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.
🤔 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.
🏛️ 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.
🤔 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.
📜 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.
🏛️ 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
💡Presidential Immunity
💡Constitutional Structure
💡Clear Statement Rule
💡Impeachment
💡Article II Powers
💡Separation of Powers
💡Executive Vesting Clause
💡Political Accountability
💡Structural Checks
💡Public Authority Defense
💡Prosecutorial Discretion
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
Mr
s Mr chief justice and may it please the
court without presidential immunity from
Criminal prosecution there can be no
presidency as we know it for 234 years
of American history no president was
ever prosecuted for his official
acts the framers of our constitution
viewed an energetic executive as
essential to securing Liberty
if a president can be charged put on
trial and imprisoned for his most
controversial decisions as soon as he
leaves office that looming threat will
distort the president's decision-making
precisely when bold and fearless action
is most
needed every current president will face
de facto blackmail and extortion by his
political Rivals while he is still in
office the implications of the Court's
decision here extend far beyond the
facts of this
case could President George W bush have
been sent to prison for obstructing an
official proceeding or allegedly uh
lying to Congress to induce war in
Iraq could President Obama be charged
with murder for killing US citizens
abroad by drone
strike could President Biden someday be
charged with uh unlawfully inducing
immigrants to enter the country
illegally for his border
policies the answer to all these
questions is no Prosecuting the
president for his official acts is an
innovation with no foothold in history
or tradition and incompatible with our
constitutional
structure the original meaning of the
executive vesting Clause the framer's
understanding and intent an unbroken
historical tradition spanning 200 years
and policy considerations rooted in the
separation of powers all Council against
it I welcome the Court's
questions uh mru to your last Point
could you be more precise as to the
source of this immunity the source of
the immunity is principally rooted in
the uh executive vesting Clause of
Article 2 Section one and how does that
happen uh that that the source of it
justice Thomas I think is as you
described in your separate opinion than
catovsky for example that the executive
vesting Clause does not include only
executive powers laid out explicitly
therein but it is all the powers that
were originally understood to be
included therein and marber against
Madison itself provides strong evidence
this kind of immunity a broad principle
of immunity that protects the
president's official acts from scrutiny
direct sitting in judgment so to speak
of the article three courts that that
matches the original understanding of
the exec how exactly would we determine
uh uh what the what an official Act is I
said I point the court to two cases for
that obviously Fitzgerald against uh uh
Nixon is the best guidance that the
Court gives where the court adopted the
Outer Perimeter test and this court
engaged an analys analysis there that's
very instructive here where it looked at
the level of specificity at which the
acts are described in in that case a
civil case here it would be the
indictment what if you have um let's say
the official Act is appointing
ambassadors and the President appoints a
particular individual to a country but
it's in exchange for a bribe somebody
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
under this Court's uh discussion in
Brewster where the Court held with
respect to legislative acts that bribery
is not an official act which also
matches the court common law background
so the way that this court and Brewster
kind of sliced at the Joint was to say
accepting the bribe and the agreement to
sex the bribe are not official acts
that's private conduct an appointment
would not be would be essentially an
unrestrict power of this court that
Congress couldn't directly regulate it's
not accepting the bribe isn't an
official act but appointing an
ambassador is certainly within the
official responsibilities of the
president so how could you how how does
your official Acts or the official
acts border boundary um uh come into
play when it's going to be official uh
assuming that the president is Innocent
but the whole question is whether he's
going to be uh found innocent or guilty
uh again I think Brewster and Johnson uh
do address that or very persuasively at
least in a slightly different context
Brewster and Johnson say the indictment
has to be expunged of all the immune
official acts so there has to be
determination what's official what's not
official you expunged the official you
say okay we're Prosecuting because you
accepted a million dollars they're
supposed to say not say what it's for
because the what's for part is within
the uh president's official duties uh
there has to be we would say independent
source of evidence for that and keep in
mind that this indictment chares what
this court has described as unrestrict
powers of the president so the premise
The Logical premise of this indictment
is that Congress by passing vague and
general criminal statutes has purported
to directly regulate the president's
exercise of things like the exercise of
the appointment and removal power uh
things like his ability to speak
directly to the American public core
exercises of his authority under the
recommendations Clause to recommend to
Congress members of Congress the
measures he thinks necessary and
expedient so you have a indictment 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 tie them together by saying
well there'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 indictment
Council it can be alleged but it has to
be
proven mum in say is a concept long um
viewed as appropriate in law that there
are some things that are so
fundamentally evil that they have to be
protected
against now I
think and and your uh answer uh below
I'm going to give you a chance to say if
you stay by it if the president
decides that his
rival is a corrupt
person and he orders the military or
orders someone to assassinate him is
that within his official acts that for
which he can get immunity it would
depend on the hypothetical but we can
see that could well be an official act
it could and why because he's doing it
for personal reasons he's not doing
it at like President Obama is alleged to
have done it to protect the country from
a terrorist he's doing it for personal
gain and isn't that the nature of the
allegations here that he's not doing
them doing these acts in
furtherance of an
official responsibility he's doing it
for personal gain I I agree with that
characterization of the indictment and
that confirms immunity because the
characterization is that there's a
series of official acts that were done
for an un because immunity says even if
you did it for personal gain we won't
hold you
responsible what do you how could that
be that's an extremely strong Doctrine
in this Court's case law and cases like
Fitzgerald well we go back to Justice
Thomas's question which was where does
that come
from there are mik here who tell us that
the
founders actually talked about whether
to Grant immunity to the president and
in fact they had had state constitutions
that granted some criminal immunity to
Governors and yet they didn't take it up
instead they F they pass an impeachment
Clause that basically says you can't
remove the president from from office
except by a uh trial in the Senate but
you can impeach him
after so or you can impose criminal
liability we would be
creating a situation in which we would
be saying is this is what you're asking
us to
say which is that a president is
entitled not to make a
mistake but more than that a pre
president is entitled for total personal
gain to use the trappings of his
office that's what you're trying to get
us to
hold without facing criminal liability
your honor I would say three things in
response to that first the doctrine that
immunity does not turn on the allegedly
improper motivation our purpose is
something that this court has reaffirmed
in at least nine or 10 that's absolute
immunity but qualified immunity does say
that whatever act you take has to be
within what a reasonable person would do
I'm having a hard time
thinking that creating false documents
that submitting false documents that
ordering the assassination of AAL that
accepting a bribe and countless other
laws that could be broken for personal
gain that anyone would say that it would
be reasonable for a president or any
public official to do that your honor as
this court said very persuasively in
Fitzgerald that the allegation that this
particular act would be done for an
unlawful purpose or was unlawful could
be made in every case and therefore if
that were the doctrine that the
allegation of improper purpose is what
deprives the objective acts of their
immunity then the would have no purchase
and that's reflected in many of the
other courts cases isn't isn't the work
though of the improper motive uh at
least in the absolute immunity context
to tell us what are official acts and
what are not I mean I had understood
that even in the ab first of all your
ask is absolute immunity isn't it
principal position that's your your your
position is you want the same kind of
doctrine that we've applied in other
contexts when we say an official has
absolute immunity um and my
understanding is that when we say that
we mean for their official acts is that
right yes we okay so any official acts
then in that world the real
decisionmaking from the court standpoint
is whether or not something is an
official act or not correct uh that is
an important determination by all means
I mean that's the determination in the
absolute immunity world because if you
determine that it's an official act then
the principle is that you get immunity
for it correct that is correct all right
so my question and I think the Chief
Justice may have asked this at the
beginning is how do you determine what
or maybe Justice Thomas how do you
determine what is an official act and
when we're talking about the kinds of
scenarios that Justice Sodor brought up
one could say that when the president is
using the trappings of his office to
achieve a personal uh uh gain then he's
actually not acting officially even if
the doctrine was absolute immunity so
what do you say about that two things in
response to that first to the last point
that allegation that this was really
motivated by an improper private purpose
could be made in every single case no I
understand that but but but it would
have to be made I'm I'm just trying to
assess even if we had the doctrine of
absolute immunity that same allegation
and the facts related to it would come
in because the person would be arguing
that he was not acting in His official
capacity he wasn't doing something
official he was doing it personal
correct the I agree age the the
objective or I'm not sure I agree but
but the point I would make response to
that is in Fitzgerald against Nixon this
court emphasized that that would result
in an intrusive uh discussion or
determination of the president's
personal motives for every official act
and again this is not just in the case
of the presidency right can I just ask
you another another quick question U
before my colleagues take it over here
um at the beginning of your analysis
when you were giving your opening
statements you were talking about um you
know the you suggested that the lack of
immunity and the possibility of
prosecution in the presidential context
is like an innovation um and I
understood it to be the status quo I
mean I understood that every president
from the beginning of time essentially
um has understood that there was a
threat of prosecution if for no other
reason than the the Constitution
suggests that they can be prosecuted
after impeachment um that uh you know
the office of legal councel has said
forever that presidents are amable to a
threat of prosecution and they have
continued to function and do their jobs
and do all the things that presidents do
so it seems to me that you are asking
now for a change in what the law is
related to immunity I would quote from
what Benjamin Franklin said at the
Constitutional Convention which I think
reflects best the founders original
understanding and intent here which is
at the Constitutional Convention
Benjamin Franklin said history provides
one example only of a chief magistrate
who was subject to public Justice
Criminal prosecution and everybody cried
out against that as no I understand but
since Benjamin Franklin everybody has
thought including the presidents who've
held the office that they were taking
this office subject to potential
criminal prosecution no I don't I see
the opposite I see all the evidence
going the other way Marbury against
Madison Mississippi against Johnson
discussed this broad immunity principle
that naturally what was up with the
pardon what was up with the pardon for
President Nixon I think
uh if everybody thought that presidents
couldn't be prosecuted then what what
was that about well he was under
investigation for both private and
public conduct at the time official acts
and private conduct I think everyone has
properly understood that the president
since like President Grant's Carriage
writing incident everyone has understood
that the president could be prosecuted
counil on on that score you there does
seem to be some common ground between
the you and your colleague on the other
side that no man's Above the Law and
that the president can't can be
prosecuted after he leaves office for
his private conduct is that right we
agree with that and then the question
becomes as we've been exploring here
today A little bit about how to
segregate private from official conduct
that may or may not uh enjoy some
immunity and we I'm sure we're going to
spend a lot of time exploring that but
uh the DC circuit in blazing game chief
judge um there joined by the panel
express some views about how to
segregate private conduct for which no
man is above the law from official acts
do you have any thoughts about the test
that they came up with there yes we
think in the main that test especially
if it's understood through the lens of
Judge cis's separate opinion is a very
persuasive test it would be a great
source for this court to rely on in
drawing this line and it emphasizes the
breadth of that test it talks about how
uh uh actions that are you know
plausibly connected to the president's
official Duties are official acts and it
also emphasizes that if it's a close
case or it appears there's
considerations on other side that also
should be treated as immune those are
the the aspects of that that we'd
emphasize as potentially guiding the
court that left open in that case the
possibility of further proceedings and
trial exactly right and that would be a
very natural course for this court to
take in this place the court can and
should reverse the categorical holding
of the DC circuit that there's no such
thing as official acts especially when
it comes to but you'd agree further
proceedings would be required that is
correct there would have to be and I
would point the court to Anderson
against kraton where the court said
there' be kind of two stages of these
further proceedings there's looking at
the indictment itself or in that case it
was a you know a complaint but look at
the charging document itself and see
whether on the face of it this is
alleging official acts and if not or it
can't be determined then there'd be a
factual proceeding and all that under
Mitchell against foresight and so forth
would have to occur before any other
proceedings in the district
Mr go ahead uh Mr Sarah you began by
explaining why you believe that uh
immunity from Criminal prosecution is
essential for the proper functioning of
the
presidency uh but my question is whether
the very robust form of immunity that
you're advocating is really necessary in
order to achieve that result so just to
take one possible alternative suppose
the rule were that a former president
cannot be prosecuted for official acts
unless no plausible justification Could
Be Imagined for uh what the president
did taking into account history and
legal precedent and the information that
was provided to the president at the
time when the Act was taken would that
be sufficient or if it is insufficient
why would it be insufficient
that might be a much better rule than
what emerged from the lower courts here
we think it would be insufficient
because again that long line of CAS is
talking about using the president's
motives and the intrusive sort of
consideration of the president's motives
as transforming acts to official and
unofficial uh uh would be would come
into play and of course once you can
make that allegation all of a sudden
you've open the door you no longer have
a per se clear bright rine rule you have
a a determination in every single case
well what if it were not what if it did
not involve any subjective element it
was purely objective you would look
objectively at the various relevant
factors that sounds to me a lot like
blazing game and especially view to the
lens of Judge Cass is a separate opinion
and that may not be different than what
we're proposing to the court today well
blazing game had to do with the
difference between official conduct and
private conduct right that's correct I
sorry I understood the court to be
asking that no this this would apply
and just a possibility I don't know
whether it's a good idea or a bad idea
or whether it can be derived from the
structure of the Constitution or the
vesting clause or any other source but
this would be applied in a purely
objective on Purely objective grounds
when the president invokes an official
power in taking the action that is that
issue yes I believe the reason I think
of Blazing game is because it talks
about an objective context specific
determination to winnow out what's
official and what is purely private
conduct and again in a with a strong
degree of difference to what I'm sorry I
if I understood Justice Leo he's
suggesting not that he's suggesting
whether even if it is an official
act whether you still Grant immunity if
that act is not
plausibly viewed as within the
realm of
law of uh he can correct me if I'm wrong
he no that's that that was the question
that I think would be a superior rule
than what then the categorical denial
that emerged in the trial court here I
do think it would I'm I'm not quite sure
why he used the word plausible because
that seems
to negate
um might as well give absolute if you're
saying plausible because anybody could
argue
plausibility we don't even require
plausible we require reasonable in
qualified immunity so well I mean one
might argue that it isn't plausibly
legal to order SEAL Team Six and I I I I
don't want to slander SEAL Team Six
because they're no seriously they're
honorable they're honorable uh officers
and they are bound by the uniform code
of military Justice not to obey unlawful
orders but no I think one could say it's
not plausible that that is legal that
that action would be legal and and I'm
sure you thought I've thought of lots of
hypotheticals I'm sure you've thought of
lots of hypotheticals where a president
could say I'm using an official power
and yet the president uses it in an
absolutely outrageous manner uh that if
we an objective determination May well
be a uh uh an interesting uh approach to
take this so apply it to the allegations
here what is plausible about the
president assisting and
creating a uh a fraudulent slate of
electoral candidates assuming you accept
the facts of the complaint on their
face um is that plausible that that
would be within his right to do
absolutely RoR we have the historical
President we SED in the lower courts of
President Grant sending federal troops
to Louisiana and Mississippi in 1876 to
make sure that the Republican electors
got certified in those two cases which
delivered the election to Ruther for be
Hayes uh the notion that it's completely
implausible I think just can't be
supported based on the face of this
indictment or even knowing the Slate is
fake knowing that the Slate is fake that
they weren't actually elected that they
weren't certified by the state he knows
all those things the indictment itself
alleges I dispute that characterization
the the indictment fixes the word label
to the so-called fraudulent elees it
fixes the word fraudulent but that's a
complete miscar ation on the face of the
indictment it appears that there was no
deceit about who had emerged from the
relevant State conventions and this was
being done as an alternative basis but I
want to address a more higher level
point a fundamental point which is that
uh uh as Justice alito's question
indicated there's a whole series of
structural checks other than criminal
prosecution that are designed to deter
these kind of you know outlandish
scenarios are extraordinarily obviously
illegal things and that's been viewed in
this Court's opinions going all the way
back to at least where do you think the
DC circuit went wrong in how it
determined what was official versus
what's personal well I read I read the
opinion Below in this particular case as
adopting a categorical view it does not
matter is the the logic of their their
opinion because there is no immunity for
official acts and therefore uh uh you
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 in the same uh uh uh
determination with respect to what's
official and what isn't official there
we agree with most of what that opinion
said and for some official acts that are
not within the Article 2 exclusive power
okay so official acts but not within the
Article 2 exclusive power uh even for
those I assume you would think that a
clear statement has to be uh required a
clear statement in the statute covering
the president if the president's
official acts are going to be
criminalized absolutely obviously the
issue is you know know at the highest
possible level when it comes to the
unrestrict powers like as in this
indictment the well I'm assuming the
exclusive Powers Are Walled off uh and
can't be prosecuted before there's a lot
of official powers that are not
exclusive to the president under his
Article 2 Authority uh but for those I
understood you to be saying at a minimum
there would need to be a clear statement
in the statute referencing the president
so that the president's on notice uh and
can um
conduct himself or herself accordingly
that's absolutely correct and that'd be
consistent both with Franklin and public
citizen in cases along series of other
clear statement can I follow up on go
ahead go ahead so you concede that
private acts don't get immunity we do
okay so in the special council's brief
on pages 46 and 47 he urges us even if
we assume that there's even if we were
to decide or assume that there was some
sort of immunity for official X that
there were sufficient private acts in
the indictment for the trial to go for
the case to go back and the trial to
begin immediately and I want to know if
you agree or disagree about the
characterization of these acts as
private um petitioner turned to a
private attorney was willing to spread
knowingly false claims of election fraud
to spearhead his challenges to the
election results private as Alle I mean
we dispute the allegation but that
sounds private to me sounds private
petitioner conspired with another
private attorney who caused the filing
in court of a verification signed by
petitioner that contained false
allegations to support a challenge that
also sounds private three private actors
two attorneys including those mentioned
above and a political consultant helped
Implement a plan to submit fraudulent
slates of presidential electors to
obstruct the certification proceeding
and petitioner and a co-conspirator
attorney directed that effort uh you
read it quickly I believe that's private
I 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 characterized what we would
say your honor if I may what we would
say as official as things like meeting
with the Department of Justice to
deliberate about who's going to be the
acting Attorney General of the United
States communicating with the American
public communicating with Congress about
matters of enormous fa concern thank
you uh thank you Council and what is the
consequence in terms of going forward
with your uh acknowledgement that those
are private acts as opposed to official
acts if you look at the uh if you look
at the uh uh the indictment here there's
a bunch of Acts that we think are just
clearly official there may be
allegations that mostly relate to what
the government has described here as
private aim or private end and the court
should remand or or address itself but
remand for a Brewster likee
determination which is what's official
and what's private the official stuff
has to be expunged completely from the
indictment before the case can go
forward and there has to be a
determination at least on remand of
what's official a two-stage
determination of what's official and
what's private well if you expunged the
official part from the indictment how do
you I mean that's like a the one-legged
stool right I mean giving 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 particular country uh that is official
the appointment that's within the
president's prerogatives The Unofficial
part is I'm going to get a million
dollars for it so if you say you have to
expunge uh the official part how does
that go forward uh this particular D we
say virtually all the over conduct is
official we don't believe it would be
able to go forward I mean there could be
a case where it would but if you look at
even the government's brief in this case
divides up the indictment into things
that other than the uh
elector allegations don't
really are they haven't disputed that
they are official acts but what they do
is say well we tie it all together by
characterizing it as done and these are
the allegations that uh the court just
referred to by an improper private aim
or private end again that's their words
and that just runs loggerheads you know
dead said against this Court's case law
and you don't look at when immunity
determinations the the the mo improper
motivation or purpose thank you justice
Thomas uh Mr s uh in assessing the uh uh
official acts of a president do you
differentiate between President acting
as president and the president acting as
candidate yes we do and we don't dispute
essentially the Blazing game discussion
of that okay but of course that has to
be done by objective determinations not
by looking at what was the purpose of
what you did this that's the most
important point there did you you uh uh
in this litigation challenge the
appointment of special counsel not
directly we have done so in the southern
district of Florida case and we totally
agree with the analysis provided by
attorney general me and attorney general
mu Casey and and it points to a very
important issue here because one of
their arguments is of course that uh uh
you know we should have this presumption
of regularity that runs into the reality
that we have here an extraordinary
prosecutorial power being exerted by
someone who has never uh uh uh nominated
by the president or or or confirmed by
the Senate at any time so we agree with
that position we we we hadn't raised it
yet in this case when this case went up
on
appeal Justice Alo when you say that the
official act should be expunged from the
indictment that in itself would not
achieve very much
unless uh evidence of those official
Acts were precluded at trial so is that
what you're saying that the prosecution
should not be permitted at trial to
prove the official acts as part of the
conspiracies that are alleged absolutely
and we think that's just the clear
implications of Brewster and Johnson and
their discussion is very in a very
analogous context thank you J I'm a
little bit confused by that um if you
have a scheme to defraud um or a scheme
to accept bribery there's evidence from
which you can infer that scheme and one
of it is that the appointment actually
happened it's an official act you
wouldn't expunge that as evidence you
would instruct the jury that there's no
liability for the actual appointment
that the liability is for accepting the
bribe similarly here I don't think the
indictment is charging that the
obstruction um occurred solely because
of conversations with the justice
department they're saying you look at
all of the private acts and you look in
the context of some of the public acts
and you can
infer the intent the private
intent from them so I'm not sure that I
understand why your problems couldn't be
taken care of at trial with an
instruction if we believe if the court
were to find I'm not even sure how they
could but if it were to find that some
public acts could not be the basis of
criminal
liability I think the best thing I can
say to that uh uh is and I think this
ties into the chief Justice's question
about a one-legged stool Brewster and
Johnson in subsequent cases like H
housekey verus meaner essentially say
that that this is a one-legged stool
problem it will be difficult for some of
these prosecutions to proceed and that
is the implications of official immunity
which is dictated in the Constitution
here by the executive besting clause
Justice Kagan can continue on in in
Justice Barrett's vein a little bit and
ask you about some of the allegations of
the indictment and whether there
official Acts or not in your view so um
the defendant signed a verification
affirming false election fraud
allegations made on his behalf and a
lawsuit filed in his name against the
Georgia government Governor uh I don't
think we've disputed that that's
official I I'm sorry that that is
unofficial that that's unofficial same
for the defendant called the chairwoman
of the Republican National Committee
asked her to gather electors in targeted
States falsely represented 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 favor we have taken the
position that that is official that's
official yes why would that be official
because the organization of alternate
slates of electors is for based on for
example the historical uh uh example of
President Grant is something that was
done pursuant to an ancel and
Preparatory to the exercise of the core
recommendation Clause power so when
President Trump couldn't he have taken
this action just in the status of a
candidate the fact that he could have
done so doesn't demonstrate that he did
do so in this case and based on the
allegations we think it's clear he did
not that this was done in an official
capacity the defendant asked the Arizona
House speaker to call the legislature
into session to hold a hearing based on
their claims of election fraud
absolutely an official act for the
president Comm communicate with State
officials on a matter of enormous
Federal interest and concern attempting
to defend the uh uh the Integrity of a
federal election to communicate with
State officials and urge them to view
what he views as their job uh uh under
state law and federal law that's an
official act well attempting to defend
the Integrity of the election I mean
that's the defense the allegation is
that he was attempting to
overthrow an election essentially
exactly right in neither allegation of
what the purpose is should make it
determinate to it should make a
difference as to whether it's immune
that is extremely strong precedent from
this court does it um does it strike you
as odd that your understanding of uh
immunity goes Way Beyond what olc has
ever claimed for the a former president
I view the olc opinions here as strongly
supporting us because anytime a
congressional statute basically got
anywhere near touching the president's
prerogatives they've said oh we're going
to interpret the statute narrowly to
avoid that well that's a different
question I mean uh what olc has always
said is that sitting presidents get
immunity but former presidents no now
there might be um uh a different
argument made about whether a statute or
whether a statute as applied to
particular conduct uh is is is uh
properly um uh available against the
president but that's a very different
argument than the immunity claim that
you're making here which OC has
definitively not supported I don't I
don't know if I put it that way I don't
recall an opinion directly addressing it
but more fundamental to us your honor is
in fact the language of cases like
Marbury and statements like made by
Benjamin Franklin at the Constitutional
Convention statements of George
Washington talking about the massive
risk of factional strife and how that
could destroy the Republic and erect a
new government on the ruins of public
Liberty that's what we rely on
principally here I site the olc opinions
because of course what you see there is
a very strong Trend that if there's any
statute that might trench in any way on
the president's prerogatives which they
they adop they interpret it to avoid
that um uh if a president sells nuclear
secrets to a foreign adversary is that
immune that sounds like similar to the
bribery example likely not immune now if
it's structured as an official act he
would have to be impeached and convicted
first before what does that mean if it's
structured as an official act well I
don't know in the hypothetical whether
or not that would be an official act
you'd probably have to have more details
to apply the Blazing game uh uh analysis
or even the Fitzgerald analysis that
we've been talking about how about if a
president um orders the military to
Stage a
coup uh I think that as the Chief
Justice pointed out earlier where there
is a whole series of you know sort
of guidelines against that so to speak
like the UCMJ for prohibits the military
from following a plainly unlawful act if
one adopted Justice alos test that would
fall outside now if one adopts for
example the Fitzgerald test that we
advance that might well be an official
act and he would have to be as I'll say
in response to all these kinds of
hypotheticals uh has to be impeached and
convicted before he can be criminally
prosecuted but I emphasize to the court
that well he's gone let's say this
president who ordered the military to
Stage aoup he's no longer president he
wasn't impeached he couldn't be
impeached um but but he ordered the
military to Stage a coup and you're
saying that's an official act uh I think
it would depend that's immune I I I
think it would depend on the
circumstances whether it was an official
act if it were an official act again he
would have to be imp what does I mean
depend on the circumstances he was the
president he um uh is the
commanderin-chief um he talks to his
generals all the time and he told the
generals I don't feel like leaving
office I want to Stage jaku is is is
that immune if if it's an official act
there needs to be impeachment and
conviction beforehand because the
framers viewed the RI that that kind of
official Act is an official act if it's
an official act it's imp is it an
official act on on the way you described
that hypothetical it could well be I I
just don't know you'd have to again it's
a fact specific context specific
determination that answer sounds to me
as though it's like yeah under my test
it's an official act but that sure
sounds bad doesn't it well it certainly
sounds very bad and that's why the
framers have and that's why the framers
have a whole series of structural checks
that have successfully for the last 234
years prevented that very kind of
extreme hyp itical and that is the
wisdom of the framers what they viewed
as the risk that needed to be guarded
against was not the the notion that the
president might Escape you know a
criminal prosecution for something you
know sort of very very unlikely in these
unlikely scenarios they even much more
likely and much more destructive to The
Republic the risk of factional strife
discussed by George Washing framers did
not put an Immunity Clause into the
Constitution they knew how to there were
immunity Clauses in some state
constitutions they knew how to give
legislative immunity they didn't provide
immunity to the president and you know
not so surprising they were reacting
against a monarch who claimed to be
above the law wasn't the whole point
that the president was not a monarch and
the president was not supposed to be
above the law uh I would say two things
in response of that uh immunity they did
put an Immunity Clause in in a sense
they put in the executive vesting clause
which was originally understood to have
to adopt a broad immunity principle that
set forth in the very broad language of
marber against Madison and also so they
did discuss and consider what would be
the checks on the presidency and they
did not say oh we need to have criminal
prosecution right there at the
Constitutional Convention Benjamin
Franken says we don't have that that's
not an option everybody cried out
against that as unconstitutional the
structural check were adopting his
impeachment and it's very clear on that
in Pages 64 to 69 of the second volume
of faren thank you justice Gorsuch just
returning to the chief Justice's
hypothetical about the Ambassador sale
uh and bribery um Congress has a statute
that specifically names the president
and says he can be um uh criminally
prosecuted for bribery presumably after
he leaves office um outside the core
areas that that Justice Kavanaugh was
talking about when Congress speaks
clearly couldn't a statute like that
Congress provide a statute like that
that would allow all manner of evidence
to come in to prove the case I think our
position is that would have to be an
unofficial act purely private conduct
for that prosecution to go forward all
right but but outside the core areas of
executive power if there is a clear
statement from Congress that something
is unlawful and it applies to the
president I I'm struggling to see why in
that case perhaps uh the evidence could
come in yeah the strongest possible case
in our view is what you've described as
kind of of the core executive powers the
unrestrict powers within the meeting of
CA law but again the holding of for
example Brewster and Johnson that we've
relied on doesn't turn on how Central it
is of a legislative act it just as if
it's an official act which here we would
say is applies basically the Outer
Perimeter test of Fitzgerald against
Nixon that doesn't come in what would
happen if if presidents were under uh
fear fear that their successors would
criminally prosecute them for their acts
in office whether it it's whether
they're engaged in drone stri all the
hypotheticals I'm not going to go
through them um it seems to me like one
of the incentives that might be created
is for presidents to try to Pardon
themselves do you have any thoughts
about that that is H didn't think of
that until your honor asset that is
certainly one incentive that might be
creative what we think is most important
we've never answered whether a president
can do that um happily it's never been
presented to us and if if the doctr of
imun remains in place that's likely to
remain the case uh for those very issues
as Fitzgerald I think very powerfully
emphasized the real concern here is is
there going to be bold and fearless
action is the president going to have to
make a controversial decision where his
political opponents are going to come
after him the minute he leaves office is
that going to unduly deter is that going
to dampen the ardor of that president to
do what our constitutional structure
demands of him or her which is bold and
fearless action in the face of
controversy and perhaps if he feels he
has to he'll pardon himself every 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 that's never been addressed
now one of the checks and balances in
addition to um impeachment that you've
discussed is subordinate liability um
you don't contest that everybody
following an unlawful order beneath the
president of the United States can be
immediately prosecuted do you I'm sorry
the court is asking whether they could
the president gives an unlawful order uh
calling the troops what all the examples
we've
heard every subordinate beneath him
faces criminal prosecution don't they uh
that is what Governor Morris said
explicitly at the Constitutional
Convention that is co- agitators could
be prosecuted there is an important
caveat because of course there would
have to be a uh a statute that would
govern that for them to be prosecuted
we've got lots of statutes the criminal
law books are are replete but I mean
do you agree is that one check that's
available absolutely and again the only
caveat that I was making is if that
statute was doing what marber says you
can't do which is going after the
subordinates to restrict for example a
core executive function the Franklin
clear statement rule might be triggered
and you might not be able to go after
that President so I don't think Congress
can say well we 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 recommendations clause and therefore
we're going to put in a criminal statute
that says if you provide false
information to Congress in carrying out
the president's recommendation Powers
you you can be immediately prosecuted
that would at least be a very difficult
question but the fundamental point of
drawing that distinction between the
president himself and his co- agitators
in the word of Governor Morris the
Constitutional Convention is an
excellent
distinction Justice Kavanaugh just
follow up on the olc opinions question
uh as you read them and I think I read
them they articulate a clear statement
rule as to this Court's cases uh for
covering official acts and your point I
think but I just want to underscore this
is that none of the statutes alleged
here or cited here have a clear
statement covering the president
therefore meaning that the president uh
can't be charged for any official acts
under this under these statutes that's
absolutely correct they're extended Way
Beyond I mean this that's separate from
the question what's official versus
what's personal but for that bucket that
is official official there's no clear
statement period that's right and as to
purely private conduct we don't think
that clear statement rule would be
invoked but as to official acts uh these
statutes the ones charged in the
indictment are just way far a field from
purporting to criminal eyes in clear
terms uh the president's official acts
and then um you're just to clarify this
the the president's not above the law
the president's not a king the founders
thought that um I think your point in
response to that is the president is
subject to prosecution for all personal
acts just like every other American for
personal acts the question is acts taken
in official capacity that's correct and
even those of course if there was
impeachment and conviction could be
prosecuted on r view and we'd emphasized
a whole series of structural checks in
addition to that uh uh uh which deter
those kind and have successfully
deterred presidential mises for 234
years then on the source of immunity
it's not explicit in the con tion but
also uh executive privilege is not
explicit in the Constitution yet in
United States versus Nixon the court
unanimously said that the Article 2
executive power in the Constitution
encompassed executive privilege and the
same principle presumably would apply to
Executive immunity being encompassed
within that executive power is
historically understood that's
absolutely correct and there's a very
telling passage in free enterprise fund
where this court talked about how
there's a letter from James madis to
Thomas Jefferson at the time of the
founding where Madison said hey the S
the removal power they did not expressly
take this away so the 1789 Congress
understood that it was left in place so
if the original understanding of the
executive vesting Clause is Broad enough
to Encompass that it would have to be
expressly taken away which is the
opposite of the presumption that they're
advancing here and then lastly I think
you've acknowledged in response to
others questions that some of the acts
in the indictment are private and your
view is that some are official is it
your position then that that analysis of
which is which should be undertaken in
the first instance by the DC circuit or
the district court most likely the
district court under the logic of
Anderson thank you justice
Barrett so Mr sour you've argued that
the impeachment Clause suggests or
requires impeachment to be a gateway to
criminal prosecution right yes I think
that's the plain meaning of that second
phrase in the Clause okay so there are
are many other people who are subject to
impeachment including the nine sitting
on this bench and I don't think anyone
has ever suggested that impeachment
would have to be the gateway to criminal
prosecution for any of the many other
officers subject to impeachment so why
is the president different when the
impeachment Clause doesn't say so
someone very important has made the
opposite suggestion as to the president
himself which is solicitor general bour
which is reformed in the olc opinions on
this where the where solicor General Bor
in 1973 as to the issue of the vice
president reviewed the historical
materials and 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 which is exactly our
position the sequence is mandatory only
as to the president keep in mind that
the criminal prosecution of a president
president prior to impeachment
contradicts in our view the plain
language of the Constitution but also
hundreds of years of history and what
doj admits is the framer's intent and so
we say that that practice whatever its
validity should not be extended to this
novel context where it clashes with the
Constitutional criminal conduct isn't
discovered until after the president is
out of office so there was no
opportunity for impeachment we say the
framers assumed the risk that of under
enforcement by adopting these very
structural checks as Justice Kia said
and Morrison against Olsen the
separation of powers uh uh prevents us
from writing every wrong but it does so
that we do not lose Liberty okay and and
the special Council makes uh a point
that I think is a pretty compelling one
you admit that if the president were
successfully impeached that he could be
criminally prosecuted after impeachment
right assuming the prosecution was for
the same conduct of which he was
convicted not impeached he must be
convicted that word conviction is right
there in the Clause okay granted um but
you also say that these criminal
statutes unless they explicitly mention
the president don't apply to him so 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 criminal statutes well there
are statutes as they concede where
president Congress has pered to two or
three they haven't done a comprehensive
review I think this looks like all they
did was Tech search for president in 18
us code again under Franklin that's a
very telling indication that the word
president is not in the statute isn't
necessarily a a a magic word requirement
so to speak but more fundamentally than
that more fundamentally in that they can
see there are statutes that exist in
addition to that much impeachment could
occur as a result of private cont
so the impeachment judgment Clause does
do significant work by authorizing the
subsequent prosecution of a president
there because what the framers if you
look at what they're discussing in the
thing is in the Constitutional
Convention is principally concerns about
private conduct which of course we can
see or noty okay so just to pick up
justice kagan's example of a president
who orders a coup let'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
was official conduct you're saying that
he couldn't be prosecuted for that even
after conviction and an impeachment
proceeding if there was not a statute
that
expressly referenced the president and
made it criminal for the president there
would have to be a a statute that made a
clear statement that Congress purported
to regulate the president's conduct okay
thank you justice Jackson so I think I
Now understand better your position um
in in your discussions with Justice
Kavanaugh became clear that you are
saying that for the private acts of a
president there's no immunity but for
the official acts of the president there
is immunity is that your position I
agree with that all right um so one
thing that occurs to me is that this
sort of difficult line drawing problem
that we're having with all of these
hypotheticals is this a private act or a
Public Act um is being necessitated by
that assumption because of course if
official acts did get absolute immunity
then it would matter we wouldn't have to
identify which are private and which are
public correct that in fact is the
approach of the DC circuit there's no
determination that needs to be made but
I'm just I'm just making so to the
extent we'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 that because of an
underlying assumption that the public
acts get immunity so let me explore that
assumption um why is it as a matter of
theory and I'm hoping you can sort of
Zoom way out here that the president um
would not be required to follow the law
when he is performing his official acts
everyone else everyone else there are
lots of folks who have very uh
high-powered jobs who make a lot of
consequential decisions and they do so
against the backdrop of potential
criminal prosecution if they should uh
break the law in that um capacity and we
understand and we know know as a matter
of fact that the president of the United
States has the best lawyers in the world
when he's making a decision he can
consult with pretty much anybody as to
whether or not this thing is criminal or
not so why would we have a situation in
which we would say that the President
should be making official acts without
any uh responsibility for following the
law I respectfully disagree with that
characterization the president
absolutely does have responsibility he
absolutely is required to follow the law
in all of his official acts but the
remedy for that is the question could he
be subject to personal vulnerability
sent to prison for making a bad decision
after he leaves office but but other
people who have consequential jobs and
who are required to follow the law make
those determinations against the
backdrop of that same kind of risk so
what is it about the president um I mean
I've heard you say it's because the
president has to be able act boldly do
you know make kind of consequential
decisions I mean sure but again there
are lots of people who have to make life
and death kinds of decisions and yet
they still have to follow the law and if
they don't they could be sent to prison
etc etc so I say two things in response
to that both from Fitzgerald that's the
very uh uh sort of inference or
reasoning that this court rejected in
Fitzgerald no but let me just Fitzgerald
was a civil situation in which the
president actually was in a different
position than other people because of
the nature of his job the high-profile
nature and the fact that he touches so
many different things when you're
talking about private civil liability
you know anybody on the street can sue
him we could see that the president was
sort of different than the ordinary
person when you say should he be immune
from civil liability from anybody who
wants to sue him but when we're talking
about criminal liability I don't
understand how the president stands in
any different position with respect to
the need to follow the law as he is
doing his job than anyone else he he is
required to follow the law and what not
if there's no criminal prose if there's
no threat of criminal prosecution what
prevents the president from just doing
whatever he wants all the structural
checks that are identified in Fitzgerald
and a whole series of this courts cases
that go back to Martin against M for
example impeachment oversight by
Congress uh public oversight there's a
long series of them if it's Gerald
directly addresses this in the Civil
context and we think that langage
naturally P I'm not sure that's that
that that's much of a back stop and what
I'm I guess more worried about you seem
to be worried about the president being
chilled I think that we would have a
really significant opposite problem if
the president wasn't chilled if someone
with those kinds of powers the most
powerful person in the world with the
greatest amount of authority um could go
into office knowing that there would be
no potential penalty for committing
crimes I'm trying to understand what
what the disincentive is from turning
the Oval Office into U you know the the
the the seat of criminal activity in
this country uh I don't think there's
any allegation of that in this case and
what George Washington said is what
Benjamin Franklin said is we view the
prosecution of a chief executive is
something that everybody cried out
against is unconstitutional and what
George Washington said is we're worried
about factional Strife which will no I'm
Al so let me let me let me put this
worry on the table if the potential for
criminal liability is taken off off the
table wouldn't there be a significant
risk that future presidents would be
emboldened to commit crimes with abandon
while they're in office it's right now
the fact that we're having this debate
because olc has said that presidents
might be prosecuted um presidents from
the beginning of time have understood
that that's a possibility that might be
what has kept this office from turning
into the kind of uh crime Center that
I'm envisioning but once we say
no criminal liability Mr President you
can do whatever you want I'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 I respectfully disagree with
that because it the the regime you've
described is the regime we've operated
under for 234 years there has not been
an expectation based on 234 years of
unbroken politic all right let me ask
you another question that let me ask you
another question about this clear
statement um line of questioning first
of all I I didn't see you argue that
below I don't know I understand that you
have that set of in your briefs here but
did you argue before the DC circuit
something about a clear statement with
respect to statutes uh yes uh in our
separately filed motion for motion to
dismiss based on statutory grounds we
extensively argued not just this clear
statement rule but a whole panel but
that's not that's not the question
presented in this case the question
presented in this case comes out of your
motion for immunity so to bring in now
an argument that you didn't raise below
it seems to me you forfeited it no I
believe it's fairly included within the
question presented especially especially
because the court expanded the question
presented from what either of the party
submitted but not to statutory
interpretation I mean that that argument
goes to statutory and avoidance um you
know con constitutional avoidance
statutory interpretation you asked for
immunity which is a totally different
thing I think they're very closely
related logically the question is is
does immunity exist and to what extent
does it and the argument is immunity at
least exists to the extent that it
raises a great constitutional question
that triggers the clear statement rule
that's a really totally
circular you you use that argument to
avoid constitutional questions you are
asking us a constitutional question here
so it doesn't even make sense to talk
about clear statement in rule the way
that it's come up in the context of an
immunity question but let me just let me
ask you this um about it uh I had one
more question
um yeah so what what is the argument
that the president of the United States
who you say is bound by the law is not
on notice that he has to do his job
consistent with the law I mean to the
extent that the clear statement rule
comes in at all it's about the person
not being on notice so I I guess I don't
understand why Congress in every
criminal statute would have to say and
the president is included I thought that
was the sort of background understanding
that if they're enacting a generally
applicable criminal statute it applies
to the president just like everyone else
so so what is the clear statement that
would have to be made in this context
under Franklin and under public citizen
Congress has to speak clearly before it
interferes with the president's powers
and we have here an indictment that
seeks to criminalize objective conduct
that falls within the heartland of core
executive Authority thank you thank you
Council
Mr
deven Mr chief justice and may it please
the court this court has never
recognized absolute criminal immunity
for any public official petitioner
however claims that a former president
has permanent criminal immunity for his
official acts unless he was first
impeached and convicted his novel Theory
would immunize former presidents for
criminal liability for bribery treason
reason sedition murder and here
conspiring to use fraud to overturn the
results of an election and perpetuate
himself in power such presidential
immunity has no foundation in the
Constitution the framers Knew Too Well
the dangers of a king who could do no
wrong they therefore devised a system to
check abuses of power especially the use
of official power for private gain here
the executive branch is enforcing
Congressional statutes and seeking
accountability for petitioners alleged
misuse of official power to subvert
democracy that is a compelling public
interest in response petitioner raises
concerns about potential abuses but
established legal safeguards provide
layers of protections with the article 3
courts providing the ultimate check the
existing system is a carefully balanced
framework it protects the President but
not at the high constitutional cost of
blanket criminal
immunity that has been the understanding
of every president from the framing
through Watergate and up to today this
court should preserve it I welcome the
Court's
questions uh Mr dban uh does the
president um have immunity uh or
uh are you saying that there's no
immunity presidential immunity even for
official acts yes justce Thomas but I
think that it's important to put in
perspective the position that we are
offering the court today uh the
president as the head of the Article 2
Branch can assert as applied Article 2
objections to criminal laws that
interfere with an exclusive power
possessed by the president or that
prevent the president from accomplishing
his constitutionally assigned functions
that is the Constitutional doctrine that
currently governs the separation of
powers what petitioner is asking for is
a broad blanket immunity that would
protect the president a former president
from any criminal exposure absent
impeachment and conviction which has
never happened in our history and we
submit that is not necessary in order to
assure that the president can perform
all of the important tasks that the
constitution reposes in him uh over over
in not so distant past uh the presidents
or certain presidents have engaged
in uh various uh activity coups or uh
Pro operations like operation Mongoose
when I was a a
teenager uh and and yet there were no
prosecutions uh why if you if what
you're saying is right it would seem
that that would have been ripe for uh
criminal prosecution of someone so
Justice Thomas I think this is a central
question the reason why uh there have
not been prior criminal prosecutions is
that there were not crimes and I want to
explain why there are layers of
safeguards that assure that former
presidents do not have to lightly assume
criminal liability for any of their
official acts at the outset there is a
statutory construction principle that is
applicable here it arises when there is
a serious constitutional question about
applying a criminal statute to the
president's acts it is not and I'm sure
that we will discuss this that no
statute can apply to the president in
His official capacity absent a
designation of the president in it but
there is a principle that if there is a
serious constitutional question courts
will strive to construe the statute so
that it does not apply to the president
in addition to that the president I
think has been mentioned earlier has
access to advice from the attorney
general and it would be a due process
problem to prosecute a president who
received advice from the attorney
general that his actions were lawful
absent the kind of collusion or
conspiracy
that itself represented a criminal
violation which I don't really see as
being a realistic option and then if I
could say one more thing because you
raised the question about uh potential
overseas taking of life and the office
of legal counsel has addressed this
quite specifically there is a background
principle of criminal law called the
Public Authority uh exception to
liability and it is read into federal
law unless Congress takes specific take
action to OU it which it never has done
as far as I am aware and in a case in
which the uh president sought to engage
in overseas activity that would result
in The Taking of Life olc did not say
the federal murder statute doesn't apply
that would be the the thrust of my
friend's argument on clear statement
instead olc went through an extensive
analysis on why the Public Authority
defense would prevent it from being
considered a violation of law to go
after a terrorist for
example um the court of appeals below
whose decision we're reviewing said
quote a former president can be
prosecuted for his official acts because
the fact of the prosecution means that
the former president has allegedly acted
in defiance of the laws do you agree
with that
statement well I think it sounds
tautologically true but I I want to
underscore that
the obligation of a president is to take
care that the laws are Faithfully
executed well the re I think it sounds
tautologically true as well and that I
think is the clearest statement of the
Court's holding which is why it concerns
me it as I read it it says simply a
former president can be prosecuted
because he's being prosecuted well I I
would not suggest that that's either the
proper approach in this case or
certainly not the government's approach
um a prosecution does of course invoke
uh Federal Criminal Law the allegations
have to be presented to a grand jury
which votes upon the indictment well
that's what I I mean shortly after that
statement in the court that Court's
opinion that's what they said but
there's no reason to worry because the
prosecutor will act in good faith and
there's no reason to worry because a
grand jury will have returned the
indictment now you know how easy it is
in many cases for a prosecutor to get a
grand jury to uh bring an indictment and
Reliance on the fa good faith of the
prosecutor um may not be uh enough in
the uh some cases I'm not suggesting
here um so if it's tological and those
are the only protections that the court
of appeals below gave and that is no
longer your position you're not
defending that position why shouldn't we
either send it back to the court of
appeals or uh issue an opinion making
clear that that's not the law well I I
am defending the court of appeals
judgment and I do think that there are
layered safeguards that the court can
take into account that will amarate
concerns about unduly chilling
presidential conduct that concerns us we
are not endorsing a regime that we think
would expose former presidents to
criminal prosecution in bad faith for
political animists without adequate
evidence uh a politically driven
prosecution would violate the
constitution under weight versus United
States it's not something within the
Arsenal of prosecutors to do prosecutors
take an oath the Attorney General takes
an oath so well I I don't want to
overstate the your Honor's concern with
potentially relying solely on good faith
but that's an ingredient and then the
courts stand ready to adjudicate motions
based on select a prosecution political
animous this court relied on those very
Protections in Advan case just two years
ago but what what concerns me is as you
know the court of appeals did not get
into a focus consideration of what acts
we're talking about or what documents
we're talking about because of its
adoption of what you termed and I agree
quite correctly as a tological
statement because the fact of
prosecution was enough enough to take
away any official immunity the Act of
prosecution they had no need to look at
what courts normally look at when you're
talking about a privilege or immunity
question well I I think I would take
issue Mr chief justice with the idea of
taking away immunity there is no
immunity that is in the Constitution
unless this court creates it today there
certainly is no textual immunity we do
not submit that that's the end of the
story United States versus Nixon wasn't
a textually based case neither was Nixon
versus Fitz we endorse both of those
Holdings but what is important is that
no public official has ever had the kind
of absolute criminal immunity that my
friend speaks of even with respect to
the speecher debate clause it's very
narrow it's focused on legislative acts
it's not focused on everything that a
congressman does and it responds to a
very specific historical circumstance
that basically involved the two other
branches uh potentially harassing
legislators and preventing them from
doing their jobs that's why it ended up
in the Constitution nothing like that
ended up in uh in the constitution for
the presidents and that's because one of
the chief concerns of the framers was
the risk of presidential misconduct they
labored over this they adopted an
impeachment uh structure that separated
removal from office as a political
remedy from Criminal prosecution this
departed from the British model the
British model was you get impeached and
criminally prosecuted and convicted in
the same proceeding the framers did not
want that they wanted a political remedy
in case a president was engaging in
conduct that endangered the nation he
could be removed he can't be prosecuted
while he's a sitting president that's
been the long-standing justice
department position Mr dben you dispute
the proposition that a former president
has some form of immunity but as I
understand your argument you do
recognize that a former president has a
form of special protection namely that
statutes that are applicable to
everybody must be interpreted
differently under some circumstances
when they are applied to a former
president isn't that true it is true
because justce Alo of the general
principle that courts constru statutes
to avoid serious Constitution questions
and that has been the long-standing
practice of the office of legal counsel
in the department of J all right so this
is more I think than just a a quarrel
about terminology whether what the
former president gets is some form of
immunity or some form of special
protection because it involves this
difference which I'm sure you're very
well aware of if it's just a form of
special protection in other words
statutes will be interpreted differently
has applied to a former president then
uh that is something that has to be
litigated at trial the the former
president can make a motion to dismiss
and may cite olc opinions and the
district court may say well that's fine
I'm not bound by olc and I interpret it
differently so let's go to trial and
then there has to be a trial and that
may involve uh great expense and it may
take up a lot of time and and during the
trial the the former president may be
unable to engage in other activities
that the former president would want to
engage in and then the outcome is
dependent on the jury the instructions
to the jury and how the jury returns a
verdict and then it has to be taken up
on appeal so the protection is greatly
diluted if you take the form uh if it
takes the form that you have proposed
and why is that better it's better
because it's more balanced the blanket
immunity that petitioner is arguing for
just means that criminal prosecution is
off the table unless he says that
impeachment and conviction have occurred
those are political remedies that are
extremely difficult to achieve in a case
where the conduct misconduct occurs
close to the end of a president's term
Congress is unlikely to crank up the
Machinery to do it and if the
impeachment trial has to occur at after
the president has left office there's an
open question about whether that can
happen at all so you're arguing against
most far-reaching uh aspects of of Mr
Sour's argument right that that is that
is correct and and let me turn then to
why what about uh to unpack it a little
more uh do you agree that there are some
aspects of Article 2 Presidential Power
that are exclusive and that Congress
cannot regulate and therefore cannot
criminalize absolutely okay for other
official acts that the president may
take that are not within that exclusive
power uh assume for the sake of argument
this question that there's not blanket
immunity for those official acts but
that to preserve the separation of
powers to provide Fair notice to make
sure Congress has thought about this
that Congress has to speak clearly to
criminalize official acts of the
president uh by a specific reference
that seems to be what the olc opinions
suggest I know you have a little bit of
a disagreement with that and what this
Court's cases also suggest so J kav I'd
like like to take all of those in turn
because I don't think this Court's cases
speak that broadly I definitely don't
think that the office of legal counsel
opinions stand for this broad
proposition that unless the president is
specifically named he's not in in the
statute and I don't think that that's
necessary in order to afford adequate
protection for the president's valid
Article 2 functions when you said unless
I sorry to interrupt but I want to just
get this out and you can incorporate in
the insert you said unless there's a
serious constitutional
question well it's isn't it's a serious
constitutional question whether a
statute can be applied to the
president's official act so wouldn't you
always uh interpret the statute not to
apply to the president even under your
formulation unless Congress had spoken
with some clarity think across the board
that a serious constitutional question
exists on applying any criminal statute
to the president the problem is the
vague stat you know obstruction and 3
371 conspiracy to fraud the United
States can be used against a lot of
presidential activities historically
with a uh creative prosecutor who wants
to uh go after a president well let me
try to backra that's what we're talking
about historically is the risk that and
and going forward the the risk so you
can take all of that I I think that the
the question about the risk is very
serious and obviously it is a question
that this court has to evaluate for the
executive branch our view is that there
is a a balanced protection that better
serves the interest of the Constitution
that incorporates both accountability
and protection for the president and I
want to go through the protections that
do exist but perhaps it's worth
returning uh at the outset to the
statutory construction question that you
raised the office of legal counsel has
said uh the offense of bribery of course
uh applies to the president it does not
name the president Justice coures
section 2011 does not specifically name
the president I assume that's personal
so well I I think that that's what
Brewster said bribery statute
607 says the president I've got it in
front of me and so there is there is
that let me just back up though just a
second to what was a quick exchange with
Justice Kavanaugh that I just want to
make sure I understand yeah did you
agree that there are some core functions
of the executive that uh president
conduct that Congress cannot criminalize
yes we so is is that a form I mean we
can call it immunity or you can call it
they can't do it but what's the
difference we call it an as applied
Article 2 challenge that we okay okay
can we call it immunity just for
shorthand sake so we so I think we are
kind of narrowing the ground of dispute
here it seems to me there is some some
area you you concede that an official
acts that Congress cannot criminalize
and now we're just talking about the
scope well 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 exclusive official acts I I I
got that but I I want to explore that
okay so for example let's say say a
president leads a mostly peaceful
protest sit in in front of Congress uh
because he objects to a uh a piece of
legislation that's going through and it
in fact delays the proceedings in
Congress now under 1512
C2 uh that might be corruptly impeding
uh a proed an official proceeding could
is that core and therefore immunized or
whatever word euphemism you want to use
for that
or is that not core and therefore
prosecutable well without a clear
statement that applies to the president
it's not it's not core the core kinds of
activities that the court has
acknowledged are the things that I would
run through the Youngstown analysis and
it's a pretty small set but things like
the pardon power the power to recognize
foreign Nations the power to veto
legislation the power to make
appointments these are things that the
constitution specifically allocates to
the president once you get out so a
president then could be prosecuted for
the conduct I described after he leaves
office probably not but I want to
explain the framework of of why uh I
don't think that that would be uh
prosecution that would be valid um first
I think you need to run through all of
the sort of normal uh categories of
analysis is there a serious
constitutional question that's posed by
applying that statute to the president
if so then you may well default to it
does not apply at least on that fact
thought you said it that was my question
and you said it it fell outside that
core we'll call it immunity for
Simplicity sake yes but there's a
there's a separate category okay so why
couldn't he be prosecuted for leading a
civil rights protest in front of the
capital that that delays a vote on a
piece of important legislation so I
think what you need to do is run through
all of the very president specific
protective layers of analysis so one of
them is whether the statute would be
construed not to apply to his conduct
even if it's not uh part of that small
core of things that Congress can't
regulate it all if it operates to
prevent the president from fulfilling
his article no he he could have given
speeches against it he did yes but he
left he he he did something more and it
and it corruptly impeded and sought to
influence an official proceeding well so
I I don't know we we're starting with
the layers I think of protection and
we're now down through whether the
statute would be construed to apply to
him then there' be a question of whether
assum it does I will assume it uh then
then there's a question of whether he
has the State of Mind necessarily does
corrupt nobody knows what corrupt intent
means we've been around that tree we
will probably find out and and maybe it
means that he knows that he was doing
wrong is what uh government told us he
knows he's doing wrong he knows he
shouldn't be up there blocking
congressman from well let me get to the
next layer then which is that the
president does have access to the
attorney general to provide legal advice
and regularly gets legal advice from the
the Attorney General on the lawful scope
of the president's activities and we
could go down two tracks here one is
that the Attorney General advises him
that as an incident of his Article 2
Authority and in carrying out uh the
functions of the presidency he can
lawfully participate in that protest
it's kind of the First Amendment analog
to uh the president's official Powers
which the court is exploring in other
cases alternatively the Attorney General
could advise him I'm sorry Mr President
there's nothing in the language of this
statute that carves you out I don't see
a serious constitutional question in it
because you don't have to do that and I
would advise you not to fin be
prosecuted no no if if gets a negative
opinion from the attorney general he
still couldn't be prosecuted I'm going
to assume that most presidents are not
going to take an well but if he gets one
and does it anyway then he could be
prosecuted well so then if we are down
at that level I think what we are really
asking is whether the president is
subject to the criminal law and our
answer is yes he is subject to the
criminal law Mr can we go back to um the
bribery statute I like you understand
that the only thing that is covered by
that is the president is barred from
soliciting a receiving funds in any room
or building in the United States that
that is correct it's an extremely
official building it's a very limited
yes mention of and it really I think can
so as I understand this there's two very
limited Provisions mentioning the
president is included that's right
there's a whole number of Provisions
that exclude the president many many
many more that exclude the president
correct it's a kind of small number on
both sides of the now jce Barrett made
the point that if we say a president
can't be included in a criminal law
unless explicitly named then that would
par the
Senate from impeaching him for high
crimes or misdemeanor because that means
that he's not subject to the law at all
correct so I I think that's a tautology
you can't escape just s my what I think
that Justice Barrett was saying and we
would agree with it is that under my
friend's position after impeachment he
could be prosecuted Ed but under his
statutory construction approach there'd
be nothing to prosecute him for exactly
that's the point which is if he's not
covered by the criminal law he can't be
impeached for it for violating it all
right now could we go further on this
clear statement through
um the situations and you mentioned it
earlier in which we have looked to see
if the president is covered is
contextual correct correct and what are
the factors that generally we look at
I'm thinking specifically about whether
the APA covers the president correct and
what we did there was analyze what
powers were being given to in the
lawsuit and Etc we looked at words we
looked at structure we looked at
separation of powers issues relating to
our case law that said you can't direct
the president to do anything and this
would have been a subterfuge for that
correct all correct all right so I don't
know why two of my colleagues uh how
they would fashion a clear statement
rule that would say when the law says
any person can't accept the bribe that
that permits the president to do it so I
agree Justice Sodor that that that the
way that this court has interpreted
statutes that do carve out the president
Justice Kavanaugh asked about this was
very context specific uh the Franklin
case basically involved a holding that
we are highly unlikely to say that the
president is an agency something that
the government said would be a peculiar
understanding of agency when the effect
of it would be that we would review the
president's decisions under statutes for
abusive discretion which is a very
extraordinary thing to do I think even
going back to Marberry this is perhaps a
point on which I agree with my friend
Marberry says discretionary acts of the
president are not the kind of thing that
the court reviews all right could I go
back to your brief
and and um going back to what some of my
colleagues have asked you there appears
to be some narrowing principles to the
concept that the president is subject to
all criminal laws in all situations
correct you agree that if it affects
core
Powers um then the he would not be
subject to any laws that attempted to
limit those core Powers correct you're
defining core Powers as those specified
by Article 2 that is essentially correct
yes all right and the only words in the
constitution is that um uh that have to
do with the president in law is that he
shall take care that the law be
Faithfully executed correct that is
right hard to imagine that a president
who breaks the law is Faithfully
executing the law correct he has to
execute all of the laws all right Mr D
really I mean the presidents have to
make a lot of tough decisions about
enforcing the law and they have to make
decisions about questions that are
unsettled and they have to make
decisions based on the information
that's available do you really did did I
understand you to say well you know if
he makes a mistake he makes a mistake
he's subject to the criminal laws just
like anybody else you don't think he's
in a special a a peculiarly precarious
position he's in a special position
position for a number of reasons one is
that he has access to legal advice about
everything that he does he's under a
constitutional obligation to he's
supposed to be faithful to the laws of
the United States and the Constitution
of the United States and making a
mistake is not what lands you in a
criminal prosecution there's been some
talk about the statutes that are issue
in this case I think they are fairly
described as malaman statutes uh
engaging in conspiracies to defraud the
United States with respect to one of the
most important functions namely the
certification of the next president well
I I don't want to dispute the particular
application of of that of 371 conspiracy
to defraud the United States to the
particular facts here but would you not
agree that that is a peculiarly
open-ended statutory Prohibition in that
that fraud under that provision unlike
under most other fraud Provisions does
not have to do doesn't require uh any uh
uh impairment of a property interest
it's designed to protect the functions
of the United States government and it's
difficult to think of a more critical
function than the certification of who
won the election you know I I'm not as I
said I'm not discussing the particular
facts of this case but it applies to any
uh fraud that interferes seriously with
any government operation right so what
the government needs to show is an
intent to impede interfere or defeat a
lawful government function by deception
and it has to be done with Center these
are not the kinds of activities that I
think any of us would think a president
needs to engage in in order to fulfill
his Article 2 duties and particularly in
a case like this one I I want to pick up
on something that the court said earlier
about the distinction between a public
official acting to achieve public ends
and a public official acting to achieve
private ends as applied to this case the
president has no functions with respect
to the certification of the winner of
the presidential election it seems
likely that the framers designed the
Constitution that way because at the
time of the founding Presidents had no
two-term limit they could run again and
again and uh uh were expected
potentially to want to do that so the
potential for self-interest would
explain why the states conduct the
elections they send uh electors to uh
certify who won those elections and to
provide votes and then Congress in a
joint extraordinary joint session
certifies the vote and the president
doesn't have an official role in that
proceeding so it's difficult for me to
understand how there could be a serious
constitutional question about saying you
can't use fraud to defeat that function
you can't obstruct ed through deception
you can't deprive millions of Voters of
their right to have their vote counted
for the candidate who they chose thank
you Council uh justice Thomas Justice
Alo could we just briefly review the
layers of protection that you think
exists and I'm going to start with what
the DC circuit said so the first layer
of protection is that Attorneys General
and other justice department attorneys
can be trusted to act in a professional
and ethical manner right yes uh how uh
robust is that protection I mean most of
the the vast majority of Attorneys
General and Justice Department of
attorneys and we both served in the
justice department for a long time are
honorable people and they take their
professional ethical responsibilities
seriously but there have been exceptions
right both among Attorneys General and
among Federal prosecutors
there have been rare exceptions Justice
Alo but when we're talking about layers
of protection I do think this is the the
starting point and if the court has
concerns about the robustness of it I I
would suggest looking at the charges in
this case they well I'm going to talk
about this in in the abstract because
what is before us of course does involve
this particular case which is immensely
important but whatever we decide is
going to apply to all future presidents
so as for attorneys General there have
been two who were convicted of criminal
offenses while in office there were
others uh a Mitchell Palmer's one that
comes to mind who is widely regarded as
having abused the power of his office
would you agree with that I would but
they are to officials in a long line of
attorneys generals who did not and in
Departments of Justice that are staffed
by multiple people who do adhere to
their office and just Leo if I could
just the point that I wanted to make
about this case does go to the general
proposition the allegations about the
misuse of the Department of Justice to
perpetuate uh election fraud show
exactly how the Department of Justice
functions in the way that it is supposed
to petitioner is alleged to have tried
to get the Department of Justice to send
fraudulent letters to the states to get
them to reverse electoral results yeah I
understand I I understand that Mr drien
but as I said this case
will have effects that go far beyond
this particular prosecution so moving on
to the second level of protection that
the DC circuit cited Federal grand
juries will shield former presidents
from unwarranted
indictments how much protection is that
well it it affords two levels of
protection one is the probable cause
finding requires evidence I think some
of the fears about groundless
prosecutions aren't supported by
evidence and they're not going to get
out of the starting game I mean there
there's the old saw about inditing a ham
sandwich um yes but I think just you you
had a lot of experience in the Justice
Department you come across a lot of
cases where uh the the the US attorney
or another Federal prosecutor really
wanted to indict a case and the grand
jury refused to do so there are such
cases there yeah yes uh but I think that
the other every once in a while there's
an eclipse too uh well 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 when they don't have evidence
to prove guilt Beyond a reasonable doubt
it's self-defeating all right then the
third level is that former presidents
enjy all the protections afforded all
criminal defendants right and we've
discussed that and that may be true at
the end of the day but a lot can happen
between the time when an indictment is
returned and the time when the former
president finally gets a Vindication
perhaps on appeal isn't that correct it
is correct Justice Leo but I think that
we should also consider the history of
this country as members of the Court
have observed it's baked into the
Constitution that any president knows
that they are exposed to potential
criminal prosecution my friend says
after impeachment and conviction we
don't read the impeachment judgment
Clause that way but we are it's common
ground that all former presidents have
known that they could be indicted and
convicted and Watergate cemented that
understanding uh the Watergate Smoking
Gun tape involved President Nixon and HR
halderman talking about and then
deciding to use the CIA to give a bogus
story to the FBI to shut down a criminal
investigation I Mr sour and others have
identified events in the past where
presidents have engaged in conduct that
might have been
charged as a federal crime and you you
say well no that's not really true this
is Page 42 of your briefs so what about
President Franklin D Roosevelt's
decision to turn Japanese Americans
during World War II couldn't that have
been charged under uh 18 USC 241
conspiracy against civil rights today
yes given this Court's decision in Trump
versus United States in which uh the you
know Trump versus Hawaii excuse me where
the court said koram matu was overruled
I mean President Roosevelt made that
decision with the advice of his attorney
general that's a layer of is that really
true I thought I thought attorney
general ble thought that uh there was
really no threat of sabotage as did Jer
Hoover so I think that there is a lot of
historical controversy but it
underscores that that occurred during
wartime it implicates uh potential
commanderin-chief
concerns concerns about the exigencies
of National Defense that might provide
an as applied Article 2 challenge at the
time I'm not suggesting today but the
idea that uh a decision that was made
and ultimately endorsed by this court
perhaps wrongly in the Coram Matsu case
would support criminal prosecution under
241 which requires under United States
versus linear that the right have been
made specific so that there is notice to
the president I don't think that would
have been satisfying all right well we
could go through other historical
examples I won't do that let me just
touch briefly on a couple of other
things one is the relevance of advice of
council and I wasn't clear what your
answer is so if the president gets
advice from the attorney general that
something is lawful is that an absolute
defense yes uh I think that it is um
under the principle of entrapment by a
stopple this is a due process doctrine
that we referred to in our brief uh our
reply brief in Garland versus Cargill
this term at page 19 where we cited
authority of this court that if a
authorized government representative
tells you that what you are about to do
is lawful it would be a a root violation
of due process to prosecute you for that
will that won't that give presidents an
incentive to be sure to pick an attorney
general who can Will who will reliably
tell the president that it is lawful to
do whatever the president wants to do if
there's any possibly conceivable
argument in favor of it so I think the
Constitutional structure protects
against that risk the president
nominates the attorney general and the
Senate provides advice and consent and
these are the sort of structural checks
that have operated for 200 years to
prevent the kind of abuses that my
friend fears going forward as a result
of this once in history prosecution uh
on the question of whether a president
has the authority to Pardon himself
which came up earlier in the argument
what's the answer to that question I
don't believe the Department of Justice
has taken a position the the only
Authority that I'm aware of is a member
of the office of legal council wrote on
a memorandum that there is no self-part
Authority as far as I know the
department has not addressed it further
and of course this court had not uh
addressed it either well when you
address that question before us are you
speaking in Your Capacity solely as a
member of the special council's team or
or are you speaking uh on behalf of the
justice department which has special
institutional responsibilities I am
speaking on behalf of the justice
department we're representing the United
States now 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 order to decide this case
because if a president has the authority
to Pardon himself before leaving office
and the DC circuit is right that there
is no immunity from prosecution won't
the the predictable result be that
presidents on the last couple of days of
office are going to Pardon themselves
from anything that they might have been
conceivably charged with committing I I
really doubt that Justice Alo I mean it
sort of presupposes a regime that we
have never had except for President
Nixon and as alleged in the indictment
here presidents who are conscious of
having engaged in wrongdoing and seeking
to Shield themselves I think the
political consequences of a President
Who asserted a right of self- Pardon
that has never been recognized that
seems to contradict a Bedrock principle
of our law that no person shall be the
judge in their own case uh those are
adequate deterrence I think so that this
kind of dystopian regime is not going to
evolve all right let me and end with
just a question about what is required
for the functioning of the stable
Democratic Society which is something
that we all want um I'm sure you would
agree with me that a stable Democratic
Society requires that a candidate who
loses an election even a close one even
a hotly contested one leave office
peacefully if that candidate is the Inc
incumbent of course all right
now if a an incumbent who loses a very
close hotly contested election knows
that a real
possibility uh after leaving office is
not that the president is going to be
able to go off into a peaceful
retirement but that the president may be
criminally prosecuted by a bitter
political opponent will that not lead us
into a cycle that destabilizes the
functioning of our country as a
democracy and we can look around the
world and find countries where we have
seen this process where the loser gets
thrown in jail so I think it's exactly
the opposite Justice Alo there are
lawful mechanisms to contest the results
in an election and outside the record
but I think of public knowledge uh ier
and his allies filed dozens of electoral
challenges and in my understanding is
lost all but one that was not outcome
determinative in any respect there were
judges that that said in order to
sustain substantial claims of fraud that
would overturn an election result that's
certified by a state you need evidence
you need proof and none of those things
were manifested so there was an
appropriate way to challenge things
through the courts with evidence if you
lose you accept the results that has
been the nation's experience I think the
court is well familiar with that thank
you justice sod
mayor a stable Democratic Society needs
the good faith of its public officials
correct absolutely and that good faith
assumes that they will follow the law
correct now putting that aside there is
no failsafe system of government
meaning we have a judicial system that
has layers and layers and layers of
protection for accused defendants in the
hopes that the innocent will go free we
fail
routinely but we succeed more often than
not in the vast majority of cases the
innocent do go free sometimes they don't
and we have some post
um conviction remedies for that but we
still fail we've executed innocent
people having said that Justice um Alo
went through step by step all of the
mechanisms that could potentially fail
in the end if it fails
completely it's because we've destroyed
our democracy on our own isn't it it is
justice so to myor and I also think that
that there are additional checks in the
system of course the Constitutional
Frameworks designed a separated Powers
system in order to limit abuses I think
one of the ways in which abuses are
limited is accountability under the
criminal law for criminal violations but
the ultimate check is the Good Will and
faith in democracy and crimes that are
alleged in this case that are the
antithesis of democracy that sub it mind
that an encouragement to believe words
that been somewhat put into suspicion
here that no man is above the law either
in His official or private acts I think
that is an assumption of the
Constitution Justice Kagan Mr drean I
want to go through um your framework and
make sure I understand it so first on
the small category of things that you
say have absolute protection that they
are core executive functions yes um what
are those small
categories uh pardon power pardon veto
veto foreign
recognition uh appointments Congress
cannot say you can't appoint a federal
judge who hasn't received uh you know a
certain diploma it hasn't achieved a
certain age um there are a few other
powers commanderin-chief
commander-in-chief is is on the list but
I want to add to uh my answer on that
that Congress has substantial Authority
in the National Security realm Congress
declares war it raises armies it has
power over the purse that's more so that
may be viewed as not really in that core
set of functions which nobody has any
power but the president over yes I think
that there may be some aspects like
directing troops on the field in which
the president's power is completely
unreviewable okay now in in in um in the
next category where you where we've left
the core set behind
yes but we're still in the world of
official actions and that's where you
say there are various statuto
construction rules that might come into
play correct but you have characterized
those as something different from just
saying oh look the statute doesn't say
the president therefore it doesn't apply
to the president that's right so I
wanted to give you an opportunity to say
you know how that would look how that
analysis would look in a given case and
and in the course of responding that you
know I'm sort of thinking of something
like the olc opinion which says bribery
the president can be um tried and
convicted of bribery even in the part of
the bribery statutes that do not say the
president um why is that true that is
true because there is no serious
constitutional question that the
president needs to engage in bribery in
order to carry out his constitutional
functions and the office of legal
council pointed out that bribery is
enumerated
in the impeachment Clause so it falls
outside of anything that could be viewed
as inherent in the need of Article 2 to
function do you think the premise of
that olc opinion was that the bribery
was simply not official no or is the
premise that the bribery was official
and um and still the president could be
prosecuted for it I think that the
bribery is is the kind of hybrid that
illustrates the abuse of public office
for private gain that we think is
paradig atic of the kinds of things that
should be uh not held to be immune in a
bribery case the public official cannot
extract the bribe without the official
power to offer as uh the quidd or the
pro uh I guess the quo actually um uh so
it really is a crime that can only be
committed by public officials who misuse
their power and it was one of the things
that was most mistrusted many of the
acts that are charged in this IND or
that would violate Federal Criminal Law
similarly involve the misuse of official
power for private gain so if you were to
say like what the line is in this
category like when it is that the
statute should be understood as
precluding presidential prosecution and
when it is that the statute should be
understood as allowing it what general
principles should guide so the the the
general principles I think kind of
emerge from looking at what the office
of legal counsel has done so for example
with a respect to a federal statute that
prohibited appointments to courts of
people within certain degrees of
consanguinity uh the office of legal
council said this infringes on a very
important appointment power of the
president the power to appoint federal
judges it cannot be presumed that
Congress intended to do that because it
would raise a very serious
constitutional question the president is
out then there are categories of
statutes where the president is in like
for example the Grassroots lobbying
statute that the office of legal council
wrote an opinion about that and it said
for the president or other public
officials to go out into the world and
to promote their programs that can't be
what Congress intended to prohibit what
it did intend to prohibit is using
federal funds to J up Jin up an
artificial Grassroots campaign that gave
the appearance of emerging from the
people but it was really topped down and
the office of legal council said the
president and officials who carry
the president's uh mandates are subject
to that statute so that's a more nuanced
one and then the third example that I
will give you is uh the statute that
would Pro uh permit prosecution for
contempt of congress the office of legal
council concluded that a good faith
assertion of executive privilege as a
reason for not providing information to
Congress would preclude prosecution
because Congress cannot be deemed to
have altered the separation of powers in
such a man I think olc probably would
have gone on to say if Congress tried to
do it it would be deemed
unconstitutional but again this was a
statute that did not specifically name
the president there are only two that do
that so the entire Corpus of federal
criminal law including bribery offenses
sedition murder would all be off limits
if it were taken to the uh to the to the
extent that some of the questions have
suggested and for the general principle
does it raise a serious constitutional
question and if so to what extent can it
be carved out individually and there may
be some instances where the statutes
here could be carved out and uh a
particular act could be found to be
protected or does the statute across the
board in such a wide range of
applications somewhat analogous to over
breath analysis um infringe on the
president's power so that we're going to
say that that the president is just out
now that set of issues they see them
important and U May occasionally be
difficult um they also see them not
really before us in the way Justice
Jackson suggested earlier what do you S
I mean do you think they are before us
we should just clear it up here it is we
have a case um what what else could we
do how should we deal with this uh that
there are these lingering issues that go
beyond the question of whether there's
the kind of absolute immunity that um
the former president is invoking so I
think the court has discretion to reach
that issue even though Justice Jackson
is totally right it was not raised in
the district court and it was not raised
in the court of appeals and the the
analysis that I would use to get there
is a fusion of a couple of principles
one is the court has often resolved
threshold questions that are a
prerequisite to an intelligent
resolution of the question presented so
in a case like United States versus
grubs for example the court reached out
to decide what what anticipatory
warrants are valid under the Fourth
Amendment before turning to the question
whether the triggering condition for an
anticipatory warrant had to be in the
warrant so that's one principle and then
a a precedent that bears some analogy to
this is uh Vermont natural resources
agency versus United States xrel Stevens
it was a keam case and the first
question was whether a state agency was
a person within the meaning of the false
claim Act and the second question was
whether if the state agency was 11th
Amendment immunity kicked in and the
court wrote an analysis of why it could
reach both questions the reaching the
person question didn't expand the
Court's Jurisdiction and it made sense
as a matter of constitutional avoidance
to do that there are some considerations
that cut against this and I I want to be
clear that for overall government
equities we are not wild about uh
parties who raise a uh an immunity case
that can be uh presented to a court on
an interlocutory appeal and then
smuggling in other issues so we would
want to guide the court not to have an
expansive approach to that issue but the
final thing that I would say about this
is part of our submission to this court
is that the article one branch and the
article two branches are aligned in
believing that this prosecution is an
appropriate way to enforce the law
Congress by making the law the current
executive by deciding to bring it and
since a building block of that uh
submission is that Congress actually did
apply these criminal laws to official
conduct Court may wish to exercise its
discretion to resolve that issue okay I
have one last set of questions which um
has to do with the official un
unofficial line and you heard um Mr
Sour's responses to both Justice
Barrett's questions and my questions
about what he thinks counts as official
years and what he thinks counts as
unofficial here and I'm just wondering
what you took from um his responses and
also how you would characterize what is
official and what is not official in
this
indictment so um I I think petitioner
conceded that there are uh acts that are
not official that are alleged in the
indictment and we agree with him on all
of that I think I disagree with him on
everything else that he said about what
is official and what is not organized
ing fraudulent slates of electors
creating false documentation that says
uh I'm an elector I was appointed
properly I'm going to send a a vote off
to Congress that reflects that
petitioner won rather than the candidate
that actually got the most votes and who
was ascertained by the governor and
whose electors were appointed to cast
votes that is not uh official conduct
that is campaign conduct and I think
that the DC circuit in the blasing game
case did draw an appropriate distinction
a first-term president who's running for
reelection can act in the capacity as
office Seeker or office holder and when
working with private lawyers and a
private public relations uh advise her
to Jin up fraudulent slates of electors
that is not any part of a president's
job so there's I'm sorry there's an
allegation um in the indictment that has
to do with the removal of a justice
department official would would is that
core protected conduct we don't think
that that's core protected conduct I
don't think that that I would
characterize that episode quite that way
we do agree that the Department of
Justice allegations were a use of the
president's official power in many ways
we think that aggravates the nature of
this offense seeking as a uh candidate
to OU the lawful winner of the election
and have one self-certified with private
actors is a private scheme to achieve a
private end and many of the
co-conspirators alleged in the
indictment are private but for an
incumbent president to then use his
presidential powers to try to enhance
the likelihood that it succeeds makes
the crime in our view worse so in the
Department of Justice episode uh it's
cars very late in the election cycle
after many other schemes had failed um
and at that point the the petitioner is
alleged to have tried to pressure the
Department of Justice to send false
letters to the states claiming that
there were serious election
irregularities and that they should
investigate who they certified as a
president none of this was true the
Department of Justice officials all said
this is not true we are not going to do
that and at that point petitioner is
alleged to have threatened to remove the
Department of Justice officials who were
standing by their oath and replace them
with another person who would carry it
out we're not seeking to impose criminal
liability on the president for
exercising or talking about exercising
the appointment and removal power no
what we're seeking to impose criminal
liability for is a conspiracy to use
fraud to subvert the election one means
of which was to try to get the justice
department to be complicit in this the
case would have been no different if
petitioner were successful and he had
actually exercised the appointment and
removal power and had gone through and
those fraudulent letters were sent it
would have made the scheme more
dangerous but it would not have changed
the crime and how do we think about
things like conversations with the Vice
President in other words things that if
you say it that way it's clear that they
would fall under executive privilege but
how does that relate to the question
that we're asking here so this is one of
the most difficult questions for the
Department of Justice and I I want to
explain why that is if we are operating
under a f Gerald versus Nixon lens and
looking at this the way that we look at
things when there is a private lawsuit
filed against uh the president we take a
very broad view of what the Outer
Perimeter of official presidential
action is in order to be as protective
of the president against private
lawsuits that as this court explained in
Nixon versus Fitzgerald can be very
dilar is to the president's conduct of
business so if we were putting this
under a Fitzgerald lens we would then
have to answer to the question was he
acting in in the capacity as office
Seeker or was he acting in the capacity
as office holder and if you run through
the indictment you can find support for
those two
characterizations and the Department of
Justice has not yet had to come to grips
with how we would analyze that set of
interactions thank you justice Gorsuch
if you did though I just wanted to
confirm I thought I heard you thought
that blazing game framework was the
appropriate one is that largely yes
Justice Gorsuch we we agree with the
idea of um the distinction between
office holder and office Seeker we also
agree that if it's objectively
reasonable to view the activities as
those of office holder than the
Fitzgerald immunity kicks in I think we
would look more at content of the actual
interaction in order to make that
determination then blasting game
suggested at least on the facts of that
case might be appropriate can you give
me an example of what you have in mind
I'm just trying to understand what
Nuance you're suggest so so so blasting
game adopted a you know a generally very
favorable pro-government framework that
we
endorse okay not here because we don't
think that Fitzgerald applies in the
criminal cont I understand that but but
but but but putting that aside the
distinction between official act and
private office Seeker their test is you
think good enough for government work I
I on this one the department hasn't
taken a Next Step since the blasting
game decision but let me offer a few
thoughts just scor I think might clarify
it the blasing game decision focused on
objective contextual indications to try
to see whether the president was acting
as a campaigner as opposed to a uh you
know an office holder I I think that
that that decision can also be made by
looking at what the president actually
said and let me illustrate that with an
allegation that I think my talked
briefly uh that in one of the
interactions between petitioner and a
state official a petitioner is alleged
who have said all I need you to do is to
find me 11,000 votes and change uh I
think if you look at that that content
it's pretty clear that petitioner is
acting in the capacity as office Seeker
not as president and we would look at
that content okay okay but the test I'm
just focused on the legal test correct
I'm not hearing any objections to it
other than I think that the DC circuit
placed more uh content consideration off
limits than I would okay all right and
then I wanted to understand on the core
immunity or whatever word we use that
that it seems to me that we're narrowing
the ground of dispute here considerably
do do we look at motives the president's
motives for his actions I mean uh the
for example he has lots of War Powers as
we've discussed but he might use them in
order to enhance his election his
personal interests is that a relevant
consideration when we're looking at core
Powers so I I I am thinking of this more
as looking at the objective of the
activity as opposed to the kind of
subjective motive in the sense that your
honor is talking about I think that
there is a lot of concern about saying
an electoral motive to be reelected as
such every first term president
everything he does can be seen through
the um Prism by critics at least of his
personal interest in reelection yes and
so you wouldn't want that I I think you
would say personal MO motivations off
limits with respect to the core Powers
probably well with respect to the core
Powers we think those are just things
that can't be regulated at all like the
pardon power and veto right regardless
of motive correct regardless of Mo
that's right all right so then we're in
the non-core powers right where we're
fighting over what role do motives play
there I mean uh one could remove an an
appointee that well first of all is
maybe ask this first is removing an
appointee a presidential appointee a
core power or a non-core power in your
world so here I might need to
differentiate between the principal
officers that this court in cases like
Meyers and uh seila law has regarded as
uh having a constitutional status of
being removable at will from inferior
officers where Congress does have some
regulatory latitude to impose
restrictions on removal and and rest
side yeah I I understand that put
putting that aside yes appointing a
principal officer is a Core Power I am
not uh prepared to say that there is no
potential criminal regulation to say you
can't do it for corrupt purposes to
enrich yourself for example well bribery
all right but but but that's what I was
wondering do motives come into the Core
Power analysis or not and now I'm
hearing I I thought I heard no and now
I'm hearing maybe I think maybe might be
a little bit more appropriate because
it's not involved in this case the
department has not had to take a
position on exactly how uh these core
Powers would be resolved under an as
applied constitutional 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 ones too but
uh these non-core powers and maybe core
powers where a president is acting with
at least in part a personal interest in
getting
reelected um everything he does yeah he
wants to get reelected and if you're if
you're allowing in motive to color
that um I I'm I'm wondering how much is
left uh of either the core or non-core
Powers so I I I would be fine with
carving that out and deeming that to be
something that's intrinsic in our
electoral system we're not talking about
applying criminal law to somebody who
makes an announcement that this program
will be be good for the United States
and somebody could come along and say
well you really did it to get reelected
leaving aside whether any of that
violates a criminal law I know that the
next question is assume that it does um
I'm doubtful that it in fact does
because I don't think criminal laws
generally operate on motives as opposed
to objectives and purposes but well all
right intentions I mean you frame a
motive is an intention and an intention
is a motive as you well know every day
of the week so let's put that aside I
understand we we put it putting that
aside um that really to me Falls in a
very different category and it is also
POS there's some motives or intents that
that are cognizable and others that
aren't I mean it's it's awkward right
when we look at back at like the
injunction uh back to Marbury in the
early cases you can't enjoin a president
yeah also me you could hold him in
contempt right sitting a sitting for
sure for sure just can I try one more
time let me just
spin this out just a second right and
and and it didn't matter what the
president's motives were we're not going
to look behind it right and and same
thing in Nixon we said gosh Nixon versus
Fitzgerald that's something courts
shouldn't get engaged in because
presidents have all manner of motives
and again I'm not concerned about this
case but I am concerned about future
uses of the criminal law to Target
political opponents based on accusations
about their motives m whether it's
reelection or who knows what corrupt
means in
1512 right we we don't know what that
means um maybe we'll find out sometime
soon but um the the dangerousness of
accusing your political opponent of
having bad motives and and if that's
enough to overcome your core powers or
any other
limits reactions thoughts yeah so I I I
think that you're raising a very
difficult question that's the idea right
I mean that is the idea testing testing
the limits of both sides arguments and
I'm going to say something that I don't
normally say which is that's really not
involved in this case we don't have we
don't have bad political motive in that
sense I understand that I appreciate
that but you also appreciate that we're
writing a rule for yes for the ages yes
and I think I would start by looking at
the statutes and and then seeing what
restrictions they do place on the
president's conduct and for example the
statute that prohibits uh fraud to
defeat the lawful functions of the
United States the statute defines what
the purpose is that the defendant has to
have in mind it has to be to defeat
something that the United States is
doing and it has to be by deception I
don't think that that gets us into the
realm of motive hunting in the area
where we are as concerned I think as the
court would be about doing something
that would undermine uh the presidency
and the executive branch and 1512 C2 we
may have different views on the clarity
and the scope of that statute I think if
the court does interpret corruptly is
involving a consciousness of wrongdoing
and elevates that to consciousness of
illegality then we're in a different
realm wanting to get reelected is not an
illegal motive and you don't have to
worry about Prosecuting presidents for
that yeah okay thank you Mr Dre Justice
Kavanaugh as you've indicated this case
has huge implications for the presidency
for the future of the presidency for the
future of the country in my view um
you've referred to the department a few
times as having supported the position
who in the department is it the
president the Attorney
General uh the solicitor general of the
United States uh part of the way in
which the special Council functions is
as a uh component of the Department of
Justice the regulations Envision that we
reach out and consult and on a question
of this magnitude that involves equities
that are far beyond this prosecution as
the questions of the court so it's a
solicitor general yes okay um second uh
like justice Gorsuch uh I'm not focused
on the Here and Now of this case um very
concerned about the future uh and I
think one of the Court's biggest
mistakes was Morrison versus
Olsen uh I think that was a terrible
decision for the presidency and for the
country and not because because there
were bad people uh who were independent
councils but President Reagan's
Administration President Bush's
Administration President Clinton's
administration were really uh hampered
yes uh in their view all three by the uh
independent Council structure and and
what I I'm worried about here is that
that was kind of let's relax Article 2 a
bit for the needs of the moment and I'm
worried about the similar kind of uh
situation applying here that was a
prosecutor investigating a president in
each of those circumstances and someone
picked from the opposite party the
current president uh and uh usually uh
was how it worked and and Justice Scalia
wrote that the the fairness of a process
must be judged on the basis of what it
permits to happen Not What It produced
in a particular case you've emphasized
uh many times regularity the Department
of Justice and he said
uh and I think this applied to the
independent Council system and it could
apply if presidents are routinely
subject to investigation going forward
one thing is certain however it involves
investigating and perhaps Prosecuting a
particular individual can one imagine a
less Equitable manner fulfilling the
executive responsibility to investigate
and prosecute what would the reaction be
if in an area not covered by the statute
the justice department posted a public
notice inviting applicants to an
assistant an investigation in possible
prosecution of a certain prominent
person does this not invite what Justice
Jackson described as picking the man and
then searching the law books or putting
investigators to work to pin some
offense on him to be sure the
investigation must relate to the area of
criminal offense specified uh by the
statute uh but that has often been and
nothing prevents it from being uh very
broad I paraphrased at the end because
it was referring to the judges yes um
that's the concern going forward is that
the the system will when when former
presidents are subject to prosecution in
the history of Morrison versus Olen
tells us it's not going to stop it's
going to it's going to cycle back and be
used against the current president or
the next president or and the next
president and the next president after
that all that I want you to try to allay
that concern why is this not Morrison V
Olsen Redux if we agree with you well um
first of all the the independent Council
regime did have many structural features
that emphasized an independence at the
expense of accountability we don't have
that regime now but even under that
regime Justice Kavanaugh I think if you
look at Lawrence Walsh's report on Iran
Contra uh I think this goes to a very
fundamental point for the court to
consider uh uh judge Walsh said I
investigated these matters the proof did
not nearly come close to establishing
criminal violations so we've lived from
Watergate through the present through
the independent Council ERA with all of
its flaws without these prosecutions
having gone off on a runaway train well
I think President Reagan President Bush
and President Clinton whether rightly or
wrongly thought oppos thought contrary
to what you just said I think nobody
likes being investigated for a crime but
it didn't result in the kind of
vindictive prosecutions that I I think
your honor is as raising as a
possibility we we have a different
system now I think there was a consensus
throughout Washington that there were
flaws in the independent Council system
it lapsed we now are inside the justice
department with full accountability
resting with the attorney general so the
special Council regulations now don't
operate the way that the independent
Council regulations do and I this court
would have something to say about it I
think if uh the independent Council
statute were revived I'm not sure that
anybody is in favor of that right now I
was just saying this is kind of the
mirror image of that is one way someone
could perceive it but I take your point
about the different structural
protections internally and like justice
scolia said let me I do not mean to
suggest anything of the sort in the
present case I'm not talking about the
present case uh so I'm talking about the
future uh SEC another point you said um
uh uh talked about the criminal statutes
it's very easy to characterize
presidential actions as false or
misleading under vague statute so um uh
president Lyndon Johnson statements
about the Vietnam War
MH say something's false uh turns out to
be false that he says about the Vietnam
War 371 prosecution so after he leads
office I think not but I we need this is
an area that I do think that merits some
serious and Nuance consideration
statements that are made by a president
uh to the public are not really coming
within the realm of criminal statutes
they've never been prosecuted I realize
that the court can say well what if they
were and and then I think you get to
what I would regard as a hard
constitutional question that would
probably guide the court away from
trying to resolve today although I do
think it's very different from our case
and distinguishable in important ways
but you're dealing here with two
branches of government that have a
Paramount interest in the integrity and
freedom of their interactions with each
other on the one hand the president of
course should be very free to send
usually his uh cabinet officials and sub
cabinet officials to testify to Congress
to provide them with the information
needed to enact legislation and to make
National policy and we're very concerned
about anything that would tramel that on
the other side of the equation Congress
has a compelling interest in receiving
accurate information and at the very
least I I AG not information that is
intentionally and knowingly false that
would pollute the legis how about I
think came up before President Ford's
pardon uh very controversial in the
moment yes hugely unpopular probably why
he lost in 76 yes uh now looked upon as
one of the better decisions in
presidential history I think by most
people um if he's thinking about well if
I grant this pardon to Richard Nixon
could I be investigated myself for
obstruction of justice on the theory
that I'm interfering with the
investigation of Richard Nixon so this
would fall into that small core area
that I mentioned to Justice Kagan and
Justice Gorsuch of uh presidential
responsibilities that Congress cannot
regulate how about President Obama's
drone strikes so the the office of legal
council looked at this very carefully
and determined that number one the
federal murder statute does apply to the
Executive Branch the president wasn't
personally carrying out the strike but
the aiding and abetting laws are Broad
and it determined that a Public
Authority uh exception that's built into
statutes and that applied particularly
to the murder statute because it talks
about unlawful killing did not apply to
the Drone strike so this is actually the
way that the system should function the
Department of Justice takes criminal law
very seriously it runs it through the
analysis very carefully with a
estblished principles it documents them
it explains them and then the president
can go forward in accordance with it and
there is no risk of prosecution for that
course of Activity thank you for your
answers Justice Barrett Mr dven I want
to pick up with that Public Authority
defense so I'm looking at the olc memo
that David Baron wrote that you cited in
your briefs and he describes the Public
Authority defense citing the model Penal
Code there are a few different
definitions but I'll just highlight this
one um
justifying conduct which is required or
authorized by the law defining the
duties or functions of a public officer
the law governing the armed services or
lawful conduct of war or any other
provision of law imposing a public duty
that sounds a lot like dividing a line
between official and private conduct it
it's I think it's narrower and I
recognize it's a defense not an immunity
but when we look at when you look at the
definition of it are you acting Within
the scope of authority conferred by law
or discharging a duty conferred by law I
think it's narrower than blasing game
narrower than Nixon versus Fitzgerald
but that's what it sounds like to me do
you agree or disagree you know just SP I
certainly understand the intuition that
when you act outside of your lawful
Authority you've kind of gone in a
Frolic and Detour you're no longer
carrying it out I don't really think
that that quite works for presidential
activity the only way that he could have
implemented the orders is by exercising
his Comm commander-in Chief authority
over the Armed Forces or his authority
to supervise the executive branch those
seem like core executive acts to me
there is such a possibility as an
unlawful executive
act I'm not sure that I understand your
answer I mean I was thinking it seemed
to me that in your briefs and today when
you referred to the public Authority
defense you said that's one of the
built-in protections and why immunity is
not necessary because in some of these
instances when the president takes such
actions that you know the Court's been
asking you might this result in criminal
prosecution you say well he could raise
this Public Authority defense and so I'm
saying isn't this Public Authority
defense if raised doesn't it sound like
a defense that says well I had I was
authorized by law to discharge this
function and therefore I acted lawfully
therefore I acted lawfully and not
criminally liable correct does that
involve a look into motives kind of this
is gets to what Justice was asking you
could you say I was acting within the
scope of my authority by granting a
pardon removing a cabinet officer but
then the Public Authority defense might
not apply because you had a bad motive
in doing so no I I I don't think so J
spett I think that it operates based on
objective facts disclosed to council
Council then provides the advice in this
case the Department of Justice and it
it's an objectively valid defense it's a
complete defense to prosecution so what
would be so bad I mean one thing that
strikes me is different well one thing
that's obviously different between the
Public Authority defense and Immunity is
an interlocutory appeal and having it
resolved at the outset what would be so
bad about having a question like that
resolved at the threshold having it be
an immunity the same kind of question
that could be brought up as a defense
later but have it be brought up at the
threshold as an immunity and then an
interlocutory appeal would be available
and it would be a freedom from standing
trial but not a a jet out not a get out
of jail free cart yes I I understand and
I think that if the court believed that
that was the appropriate way to craft
presidential protections it has the
authority to craft procedural rules that
Implement its Article 2 uh concerns that
said uh Public Authority is we're
calling it a defense but under many
statutes It's actually an exception to
liability itself and what you're really
talking about is trying the general
issue and generally in criminal cases
even cases that involve First Amendment
issues like threats statutes the jury is
the determinant of the facts and I have
a little bit of difficulty with the idea
of trying the whole public authority
issue separately to the judge and having
that go up on interlocutory appeal with
review of facts before you could ever
get it Forward into a criminal case that
said it if I would prefer a regime in
which the court uh altered some of the
procedural rules surrounding the
president than a total absolute blanket
immunity that takes away the the
possibility of criminal prosecution even
if it was a core violation of the
statute in the teeth of attorney general
advice and has no overriding public po
you think it has to be a jury question
and I I mean I let's see I wasn't
necessarily proposing actually treating
it as a defense that was done at the
outset and then subject to interlocutory
appeal I was proposing what about an
immunity doctrine that Drew from the
public Authority defense that the
Department of Justice thinks would
otherwise apply so just just go with me
on that for a minute why would it be so
bad for it not to be a jury question I
mean it seems to me that some of these
Article 2 concerns would be exacerbated
by having it go to a jury rather than a
judge so I I think some of them are uh
judge questions that could be resolved
on the face of the indictment if the
Department of Justice ever returned an
indictment that said the issuance of
this pardon or this series of Pardons
constituted obstruction of justice I
have a little difficulty hypothesizing
it but a motion could be made on the
face of the indictment that says Article
2 precludes Congress from regulating
these activities the indictment needs to
be dismissed and if the court wish to
attach to that kind of a rule
interlocutory appeal then that that
would be a a lesser safeguard than the
the one that my friend is proposing here
other kinds of defenses though really do
intersect with the general issue and for
those I have a much greater uh time
seeing how the court could Implement
that and would there be cost in going to
trial yes there is no perfect system
here we are trying to design a system
that preserves the effective functioning
of the presidency and the accountability
of a former president under the rule of
law and the perfect system that
calibrates all of those values probably
has not been devised I think that the
system that we have works pretty well
maybe it needs some few ancillary rules
it is different from the radical
proposal of my friend I I agree let let
me ask you about State
prosecutions because if the president
has some kind of immunity that's
implicit in Article 2 then that immunity
would protect him and from State
prosecutions as well a lot of the
protection that you're talking about are
internal protections that the federal
government has Protections in the
Department of Justice which obviously
are not applicable at the many many many
many uh state and local jurisdictions
across the country what do you have to
say to that so that raises a supremacy
clause issue and the court would run a
supremacy clause analysis that would
probably start with basic principles
like mullik versus Maryland the states
do not have the authority to burden
Federal functions and would then kind of
move through in Reagle where the court
said that a State murder prosecution of
a federal official guarding a Supreme
Court Justice and who fired a shot was
not permissible if the court thought
that you needed a more categorical rule
for the states I think the supremacy
clause certainly leaves it within the
Court's prerogative to determine that
the president unlike all other officials
deserves more of a robust Federal
defense than what I have justed it would
still be a defense in in the states it
wouldn't be I mean that's my point like
the you know it's one thing to say well
the president they're not going to be
these prosecutions that are politically
motivated the things that Justice
Kavanagh was referring to that might be
the danger of of the system one thing
that we have to worry about that might
not carry the day but you know that's a
concern it's totally different when you
take it outside of the Department of
Justice and its structures and then you
throw it out elsewhere the idea across
across the states the idea of an
immunity I think has a lot more purchase
if you're talking about something that
protects the former president from
standing trial and the state and state
and local level so I 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 and local level
certainly within the Court's Authority
as a matter of supremacy clause law to
find an immunity but we we have been
talking here about at some length on the
distinction between official acts and
private
acts that will have to be determined by
some sort of a process any immunity
defense that the court announces can
still be met by a state assertion that
we're Prosecuting private conduct you're
going to have to have some process I
think having some legal process is not a
reason to cast aside a Nuance system
that actually looks at what protections
are necessary as opposed to what would
provide the absolute maximum insallation
for former presidents even if we
acknowledge that it's highly
prophylactic totally agree and I wasn't
actually contrasting the absolute
immunity rule I was saying that if there
were some sort of official private their
consequences towards about making
immunity okay and since you bring up the
private act it's my last question so I
had asked Mr sour about on page 46 and
47 of your brief yes you say even if the
court were inclined to recognize some
immunity for a former president's
official acts it should remand for trial
because the indictment alleges
substantial private conduct yes and you
said that the private conduct would be
sufficient yes the special counsel has
expressed some concern for Speed and
wanting to move forward so you know the
normal process what what Mr sour asked
would be for us to remand if we decided
that there were some official acts
immunity and to let that be sorted out
below it is another option for the
special Council to just proceed based on
the private conduct and drop the
official conduct well well two things on
that just first first of all there's
really an integrated conspiracy here
that had different components as alleged
in the indictment working with with
private lawyers to achieve the goals of
the fraud and as I said before the the
petitioner Reaching For His official
powers to try to make the conspiracies
more likely to succeed we would like to
present that as an integrated picture to
the jury so that it sees the sequence
and the gravity of the conduct and why
each step occurred that said if the
court were to say that the fraudin
elector scheme is private reaching out
to State officials as a candidate is
private trying to exploit the violence
after January 6th by calling senators
and saying please delay the
certification proceeding is private
campaign activity we still think
contrary to what my friend said that we
could introduce the interactions with
the justice department the efforts to
pressure the vice president for their
evidence
value as showing the defendant's
knowledge and intent and we would take a
jury instruction that would say you may
not impose criminal culpability for the
actions that he took however you may
consider it in so far as it Bears on
knowledge and intent that's the usual
rule with protected speech for example
under Wisconsin versus Mitchell my
friend analogizes this to the speech or
debate clause well we don't think the
speech or debate clause has any
applicability here it's a very explicit
constitutional protection that says uh
senators and representatives shall not
be questioned in any other place so it
carries an evidentiary component that's
above and beyond whatever official act
immunity he is seeking and the last
thing I would say on this is we think
that the concerns about the use of
evidence of presidential conduct that
might otherwise be official and subject
to executive privilege is already taken
care of by United States versus Nixon
that balances the president's interest
and confidentiality against the need of
the judicial system for all available
facts to get to the truth and once that
has been overcome we submit the evidence
can be used even if culpability can't
rest on it thank you justice Jackson
just to pick up where Justice Barrett
left off I I think I heard you say that
even if we decide here something a a
rule that's not the rule that you prefer
um that is somehow separating out
private from official acts and saying
that that that should apply here there's
sufficient uh allegations in the
indictment in the government's view that
fall into the private acts bucket that
the case should be allowed to proceed
correct because in an ordinary case it
wouldn't be stopped just because some of
the acts are allegedly IM immunized even
if people agree that some are immunized
if there are other acts that aren't the
case would go forward that is right all
right um going back to the clear
statement uh argument I I I'm struggling
with that argument because my
understanding was that when a charged
criminal statute is read narrowly in the
presidential context to not apply to the
president um a constitutional question
is being avoided so that you're doing
that to avoid having to deal with the
Constitutional question so what is the
Constitutional question that is being
avoided in those kinds of situations a
serious one this is just an application
of this Court's ordinary construction of
criminal statutes that if there is an
available interpretation that would
avoid a serious constitutional question
the Court's preference is to and the
nature I guess I'm going at what is what
is my understanding is that what is
being avoided in that situation is the
question of whether a former president
or you know can be held criminally
liable for doing the alleged act that is
being asserted in that statute
consistent with the Constitution so we
look at the statute it's got some
elements in it and we are saying well
gez if this statute and those elements
apply to the president's conduct in this
situation we'd have to a answer the
question can the president be held
liable consistent with the Constitution
for that behavior is that right so the
first step in that analysis I just want
to yes yes but the first step is is
there ambiguity and these statutes apply
to any person they apply to whoever
there's no ambiguity in those phrases
this court in nardone versus United
States concluded that similar words any
person yes apply to government officials
all right well assume let's just assume
that we I guess I'm just trying to get
at we're avoiding a constitutional
question if we do that in in the
ordinary case and and what's confusing
to me about this case is that we're not
being asked to avoid the Constitutional
question in fact the question of whether
or not the president can be held liable
consistent with the Constitution or does
he have immunity is the question that's
being presented to us so I don't
understand how the clear statement kind
of analysis even works it seems
completely tological to me for us to
hold that presidents cannot be
prosecuted under any criminal statute
without a clear statement from con uh
Congress to avoid the question of
whether or not the Constitution allows
them to be prosecuted we'd have to have
a reason right I mean we' we'd have to
have a rationale for applying the C
clear statement rule I I think the court
would 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 in thinking about
how the clear statement rule Works in
United States versus Sun Diamond a case
about gratuities that court is probably
familiar with Justice Scalia wrote an
opinion for a unanimous Court in which
he used a hypothetic iCal about what
would happen if the president received a
sports replica Jersey at a typical White
House Event would that violate section
2011 C and the court offered a
construction that it had to be for
because an official act to avoid that
problem I think if there was such a
well-received understanding that
presidents are not included in general
Federal Criminal Law uh unless the
president is specifically named which he
is not in section 2011 Justice Scalia
would have thought of that and some
member of the Court would have reacted
and none did all right let me go on to
ask about um what you take the
petitioner's position to be in this case
because we've had a lot of talk about
drawing the lines um Justice Kavanaugh
Justice Gorsuch suggested that we should
be thinking about blasing game and um
that within the first we have private
versus official and then within official
now we have something about core Act
versus other acts as we try to figure
out you know at what level the president
is going to have immunity but I took the
petitioner's argument in this case not
to be inviting us to engage in that kind
of analysis I thought he was arguing
that all official acts get immunity and
so I didn't understand us to be um
having to drill down on which official
acts do and so my question is why isn't
an enough um for the purposes of this
case given what the petitioner has
argued to just answer the question of
whether all official acts get immunity
uh that that is enough and if the court
answers that question the way that the
government has submitted that resolves
the case I I want to make a
clarification that I may have left the
court with some uncertainty about the
official act analysis that my friend is
talking about is the Fitzgerald versus
Nixon Outer Perimeter test which is
extremely protective of the president
it's not looking at core versus
ancillary it's saying everything the
president does is a target for private
civil lawsuits that is not a great thing
and therefore they are all cut off
that's an absolute immunity kind of
concept right anything that's official
in the Outer Perimeter is not subject to
liability that is right and so we don't
have to then go well okay we have the
bucket of official now let's figure out
which within that might be subject to
liability not on the theory of absolute
immunity correct neither on the theory
of absolute immunity or on our Theory uh
on his theory everything's protected on
our Theory there is no immunity but this
is where I would draw the distinction
there are as applied constitutional
challenges that you run through the
Youngstown framework and this Court's
customary method of analysis and you
determine whether there's a infringement
of Article 2 so what you're saying is
even if we reject the absolute immunity
Theory it's not as though the president
is you know doesn't have the opportunity
to make the kinds of arguments that
arise as at the level of you know this
particular act or this particular
statute has a problem in uh retrospect I
think I hear you saying we should not be
trying to in the abstract set up those
boundaries ahead of time as a function
of sort of blanket immunity allow each
uh allegation be brought and then we
would decide in that context yes with
with the additional note that petitioner
has never made that argument and I think
it would be up to a district court to
decide whether to go that route at this
point in the litigation he's put all of
his eggs in the absolute immunity basket
all right and if we if we invite uh you
know if we see the question presented as
broader than that and we do say let's
engage in the core uh official versus
not core and try to figure out the line
um is this the right vehicle to hammer
out that test I mean I I'd understood um
that the most if not all but most of the
allegations here there's really no
plausible argument that they would fall
into core versus not such that they are
immune we don't think there are any core
acts that have been alleged in the
indictments that would be off limits as
a matter of Article 2 so if we were
going to do this kind of analysis try to
figure out what the line is we should
probably wait for a vehicle that
actually presents it in a way that
allows us to test the different sides of
the uh the standard that we'd be
creating right I don't see any need in
this case for the court to embark on
that analysis all right the final sort
of uh set of questions that I have have
to do with what I do take as a very
legitimate concern about uh
prosecutorial abuse about future
presidents being um targeted uh for
things that they have done in office I I
I take that concern I think it's a real
thing but I wonder whether some of it
might also be mitigated by the fact that
existing
administrations have a self-interest in
uh protecting the presidency that they
understand that if they go after the
former guy soon they're going to be the
former guy and they will have created
precedent that will be problematic so I
wonder if you might comment on whether
some of the caution from the justice
department and the prosecutors and
whatnot comes from an understanding that
they will soon be former presidents as
well I I think absolutely and I would
locate this as a structural argument
that's built into the Constitution
itself the executive branch I think as
this court knows has executive branch
interests that it at times asserts in
opposition to to Congress so that the
proper functioning of the president is
protected and I believe that that value
would be operative and is operative in
anything as momentous as charging a
former president with a crime and I
would also say I think and ask you to
comment on you know pre presidents are
concerned about being investigated and
prosecuted and it chills to some extent
their you know ability to uh do what
they want in office and that's a concern
on one side but can can you comment on
the concern about having a president
unbounded while in office a president
who knows that he does not have to
ultimately uh follow the law because
there is really nothing more than say
political accountability in terms of of
impeachment I mean we have amicus briefs
here from Professor leaderman for
example who says um you know a president
would not be prohibited by Statute from
perjuring himself under oath about
official Matters from corruptly altering
destroying or concealing documents to
prevent them from being used in an
official proceeding from suborning
others to commit perjury from bribing
Witnesses or public officials and he
goes on and on and on about the things
that a president in office with the
knowledge that they have no criminal
accountability would do I see that as a
concern that is at least equal to the
president being worried so worried about
criminal prosecution that he you know is
a little bit Limited in his ability to
function so can you talk about those
competing concerns so Justice Jackson I
think it would be a sea change to
announce a sweeping rule of immunity
that no president has had or has needed
I think we have also had a perfectly
functioning system that has seen
occasional episodes of presidential
misconduct the Nixon era is the
paradigmatic one the indictment in this
case alleges another for the most part I
believe that the legal regime and the
Constitutional regime that we have works
and to alter it poses more risks thank
you thank you thank you Council rebuttal
Mr
SAU I have nothing further your honor
thank you councel councel the case is
submitted the honorable court is now
adjourned until Thursday the 9th of May
at 10:00
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