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

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