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
- π The discussion revolves around the concept of presidential immunity, specifically whether a sitting or former president can be criminally prosecuted for official acts.
- πΊπΈ 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.
- βοΈ The argument is made that charging a president could lead to de facto blackmail and extortion by political rivals, potentially distorting decision-making processes.
- π« 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.
- π€ 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.
- π 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.
- π€ 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.
- π¨ 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.
- π‘οΈ It is suggested that existing legal safeguards, such as impeachment and the advice of the Attorney General, provide sufficient protection against presidential misconduct.
- π 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.
- ποΈ 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
π 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.
ποΈ 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.
π€ 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.
π« 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.
π€ 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.
π 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.
π’ 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.
π€ 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.
ποΈ 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.
π€ 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.
π 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.
ποΈ 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
π‘Presidential Immunity
π‘Constitutional Structure
π‘Clear Statement Rule
π‘Impeachment
π‘Article II Powers
π‘Separation of Powers
π‘Executive Vesting Clause
π‘Political Accountability
π‘Structural Checks
π‘Public Authority Defense
π‘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