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April 25, 2024 - Viva & Barnes
03:18:44
Supreme Court Oral Arguments on Presidential Immunity - Viva Frei Live!
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But look, every single election cycle, we see district attorneys running on, I'm going to be a tough-on-crime district attorney.
I'm going to prosecute the gangs.
I'm going to stop carjackings.
And then when they get in office and they go after the gangs, they go after the carjackers, they go after the other criminals because they said they were going to do so during the campaign.
Those people can't go to court and say, well, they campaigned on saying they were going to get rid of the gangs.
I'm in a gang, so therefore this is a political persecution.
This is what happens when you start pulling the strings of our system apart.
Go back to what John Jay said in the Federalist Papers.
He talks about the fact that the institutional legitimacy of our judicial system is the one thing that sets us apart from colonial Europe.
And we want to continue this great American experiment.
It means that we reinforce and we support our justice system, not that we bend it to whatever is convenient for any individual defendant.
Robert, I mean, those are nice platitudes, but you understand the difference between saying I'm going to be tough on crime versus I'm going to be tough on Trump.
There's a difference between saying I'm going to go after gangs and I'm going to go after Mr. X or Mr. Smith.
Leticia James campaigned off prosecuting Trump, not crime, Trump, calling him an illegitimate president.
Testify Fry.
And when she couldn't find that theory of the case, then she has to go to fraudulent overvaluation of assets.
They didn't say we're going to be tough on crime.
They said we're going to go after Trump because he's an illegitimate president, and he recognized every option of state powers to go after the duly elected president to prevent him from getting elected a second time.
But we only have about 45 seconds left in this segment, so David, I'll give you the last word.
Thank you.
Yeah, it's a very Nancy Pelosi.
You'll be able to prove your innocence at trial.
That's when the system's been flipped upside down already.
And this idea, he can assert his innocence.
You are pulling the Lavrenta barrier.
Find me the man, I'll show you the man.
And just say, well, just prove that you're innocent.
It's like the witch.
If she floats after you kill her, I guess she was innocent.
Testify, Vivo.
Hold on.
Let me just make sure I don't accidentally shut down the entire stream here.
We're going to have a couple of warm-up videos.
Then we're going to get into thanking the sponsor.
Then we're going to get into oral arguments before the Supreme Court.
Robert Petillo, the guy that you saw there, I think he's agreed to come on my channel for a longer format than six or eight-minute segments.
I feel bad because you have to be a jabbermouth to actually get everything that you need to get in in short segments, which is why long-format podcast-style interviews are the way of the future.
But, like, it's not to say that, you know, somebody's right and somebody's wrong, but am I wrong in thinking somebody's right and somebody's wrong?
Like, the analogy is flawed, which is why I hate analogies.
The argument, you know, a lot of attorney generals campaign off being tough on crime.
Yeah!
That's different than being tough on a person.
Oh, the dog.
Hold on one second.
Like, I feel if I'm grading a test, I grade that and I say, you've missed the point.
Because saying I'm going to be tough on crime is not selective prosecution.
That is policy.
Saying I'm going to be tough on Viva Fry if I get elected is selective prosecution.
But that wasn't the oral argument portion of my appearance on Jenna Ellis yesterday.
And for all of you, anybody complaining about going on Jenna Ellis?
Don't be high school.
Don't be high school click.
Nonsense, okay?
In fact, even if you think you hate Jen Ellis or you don't like Jen Ellis, that means you should go on even more so.
It's nice to go on podcasts with people you like, who are your friends, who you think you get along with.
First of all, don't be juvenile clicky.
It's bad.
Don't be judgmental.
How could you go on that show?
Because then you're actually not much better than those leftists.
Not Silver Tower.
Ivory Tower pricks who say, I'm never going to go fraternize with the likes of Viva Fry or Robert Govea or Nate Brody.
I don't want to fraternize with the right.
Hogwash.
You think you don't like someone?
You should want to go on their show even more.
Get the hard treatment, if that's what you think.
Oh, if she's not cool enough, well, grow up.
We're not in high school anymore.
Now, that wasn't the immunity argument.
This was the immunity argument because we had two segments yesterday.
And I dare say...
I think I'm right.
Period.
I don't think Robert Petito's a bad person, although there's no although.
When Robert Petito comes on, I'm going to ask him questions.
I want to know if some of these people who promote Democrat, what I call talking points, if they're remunerated, if there's a consideration other than pure intellectual reasoning, consideration.
But listen to this one.
This is on the actual immunity.
And then we're going to get into the day's show.
I feel like we exist in almost a different multiverse on these things because I don't see how the Supreme Court can come back down in favor of presidential immunity.
It will create a completely new class of individual in American society, which will be an individual who is literally above the law.
Above the law.
That's the talking point.
Our founding fathers never intended to take place.
Something that was explicitly written about by both Hamilton, Jefferson, Madison.
No one was supposed to be above the law?
Our founding fathers explicitly wrote about it?
Yeah, it's called the Constitution!
No one's above the law.
I'll get to my point.
Across the board about not having presidents or leaders who are above the law, it will change it from a constitutional system to a monarchy, essentially.
That any time that a president can keep the other party from having a two-thirds majority to convict him in the United States Senate, he essentially can do whatever he wants to do.
And there's absolutely no penalty at law for that.
That is something that's never been contemplated by our government.
Wrong.
Wrong.
A new level of power.
Wrong.
And I think somebody who considering something like governmental conservative, Look at me in there.
The hardest thing for me on this earth when intercoursing with people is waiting for them to finish saying what they're going to say when I know what they're going to say.
And I'm told it's very rude to cut people off.
And I have to struggle.
Bite my tongue.
Well, so gentlemen, here's my perspective.
Go ahead, David.
Yeah, you responded.
We might live in two different universes.
One is fact and constitution-based, and the other one is political vendetta-based.
No one is above the law.
True.
But nobody's the president, and the president has specific provisions in a constitution that give him executive powers that no other citizen gets.
So he's not above the law.
He's subject to a different law.
And one of those laws is embedded in the Constitution.
You don't get to harass a president unless you have successfully impeached and convicted.
And the reason for that is very logical.
Because otherwise, you will have your rogue state attorneys, district attorneys, attorney generals, Leticia James, Fannie Willis, who will go after a president after if they don't like his policy, like Leticia James is doing, or who will extort him in real time.
So this whole nobody's above the law, you're right.
It just so happens that the president is subjected to a different law than every other citizen.
And there's a damn good reason that the, I won't say the forefathers, but not the forefathers, the founding fathers thought of when they were drafting that constitution.
So he's not above the law.
He's just subject to different laws that are not being applied to him right now.
And that is going to be the question before SCOTUS today.
What level of immunity does a president sitting, well, not sitting, former president benefit from?
We'll get there.
In a second.
I'm actually going to read the certiorari question.
What is it called?
Certiorari.
The question before the court today.
In a second.
No one's above the law.
You're right.
It just seems to me that there are very specific provisions of the Constitution, of the law, that apply to the president, whomever that president might be.
So yeah, I'm not the president, so that provision of law doesn't apply to me.
He's not above the law, but he sure as hell isn't below it.
Although if you'd ask a number of people, I'm sure they'd tell you he is below the law because they're treating him not like a low-level criminal.
They are treating him the way they treat their political adversaries in communist, fascist, authoritarian, totalitarian, kangaroo court, third world country, banana republic regimes.
All right.
Before we even get into anything, people.
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Okay.
Now, with that said, people.
What time is it?
Starts at 10 o 'clock.
Let me see if I got to open up the back thing here.
Where am I?
Oh, is it here?
Okay.
Hold on.
Hold on.
Let me refresh.
So the question of the day.
Hold on.
Let me just make sure that we're not, that we're waiting.
Okay.
I got a commercial.
And everyday.
Skip.
Okay, so.
Okay, so...
What's going on here?
Are they having, like, a powwow?
Okay, so I guess we don't see it yet.
If anybody...
If I'm not on the right channel, people, let me know, but I think this is good.
And while we wait, I'm gonna leave this in the backdrop so I can hear it, and I'll bring it back in when we come back in.
What I want to bring up is the question of the day, people.
Is this it right here?
This, I believe, is it.
23939, Trump versus United States.
Oh yeah, this is it.
Okay.
Oh yeah, the certiorari was granted on February 28, 2024.
Oh, it's on.
Shoot, it's on.
Hold on, hold on.
Stop, stop, stop, stop.
Viva, shut your face.
Get the screen up.
Come on.
Here we go.
How are the audio levels?
Agreed.
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.
and bold and fearless action is most needed.
Every current president Here we go.
while he is still in office.
The implications of the court's decision here extend far beyond the facts and facts.
this case.
Agreed.
Could President George W. Bush have been sent to prison for obstructing an official proceeding or allegedly lying to Congress to induce war in Iraq?
Could President Obama be charged with murder for killing US citizens abroad by drone strike?
Some people will say yes.
Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies?
Sue him.
The answer to all these questions is no.
It would be yes.
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 framers' understanding and intent, an unbroken historical tradition spanning 200 years, and policy considerations rooted in the separation of powers all counsel against it.
I welcome the court's questions.
Mr. Sauer, 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 executive vesting clause of Article 2, Section 1. And how does that happen?
The source of it, Justice Thomas, I think is, as you described in your separate opinion in Zivotofsky, for example, that the executive vesting clause does not include only executive powers laid out explicitly therein, but encompasses all the powers that were originally understood to be included therein.
And Marbury against Madison itself provides strong evidence of 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 III courts.
That matches the original understanding of the executive.
How exactly would we determine what an official act is?
Point the court to two cases for that.
Obviously, Nixon is the best guidance that the court gives.
The court adopted the outer perimeter test, and this court engaged in analysis there that's very instructive here, where it looked at the level of specificity at which the acts are described.
In that case, a civil case here would be the indictment.
What if you have, 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 discussion in Brewster, where the court held, with respect to legislative acts, that bribery is not an official act, which also matches the common law background.
So the way that this court in Brewster kind of...
Sliced at the joint was to say accepting the bribe and the agreement to sext the bribe are not official acts.
That's private conduct.
An appointment would be essentially an unrestrictable power of this court that Congress couldn't directly regulate.
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 does your official acts or the official acts order boundary come into play when it's going to be official, assuming that the president is innocent, but the whole question is whether he's going to be found.
Again, I think Brewster and Johnson 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.
Well, you expunge the official, you say, okay, we're prosecuting.
Even because you accepted a million dollars, they're supposed to not say what it's for because...
The what's for part is within the president's official duties?
There has to be, we would say, independent source of evidence for that.
And keep in mind that this indictment charges what this court has described as unrestrictable 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 employment and removal power, things like his ability to speak directly to the American power.
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 an 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.
Counsel, it can be alleged, but it has to be proven.
But you're taking the president to court.
Now what I'm going to say is a concept long viewed as appropriate in law.
That there's some things that are so fundamentally evil that they have to be protected against.
Now, I think...
Impeach then.
Your answer 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 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 like President Obama is alleged to have done it.
Oh, they found a way to wheeze a lot of Obama.
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 need.
Impeach and convict.
I agree with that characterization of the indictment.
And that confirms immunity because the characterization is that there's a series of No, because immunity says, even if you did it for personal gain, we won't hold you responsible.
How could that be?
That's an extremely strong doctrine in this court's case law in cases like Fitzgerald.
Well, we go back to Justice Thomas's question, which was, where does that come from?
There are Mika here who tell us that the founders actually talked about whether to grant immunity to the president.
And in fact, they had state constitutions that granted some criminal immunity to governors.
And yet, they didn't take it up.
Instead, they pass an impeachment clause that basically says you can't remove the president from office except by a trial in the Senate, but you can impeach him after.
Or you can impose criminal liability.
No, you just said it.
You can impeach him after.
She just said it.
The situation in which we would be saying, this is what you're asking us to say.
Impeach him after.
Which is that a president is entitled, not to make a mistake, but more than that, a president is entitled for total personal gain.
Impeach him after.
To use the trappings of his office.
That's what you're trying to get us to.
No, you just gave the answer, Sotomayor.
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 or purpose is something that this court has reaffirmed in at least nine or ten days.
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 Impeach and convict.
And until then, tough noggies.
Your Honor, as this court said very persuasively in Fitzgerald, 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 immunity would have no purchase.
And that's reflected in many of the other courts' cases.
Isn't the work, though, of the improper motive, at least in the absolute immunity context, to tell us what are official acts and what are not?
I mean, I'd understood that even in the...
First of all, your ask is absolute immunity, isn't it?
That's our principal position.
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.
Like to every other official.
And my understanding is that when we say that, we mean for their official acts.
Is that right?
Yes.
That's a fair question.
So any official act, so then in that world...
It's not immunity for non-official acts.
...the real decision-making from the court standpoint is whether or not something is an official act or not, correct?
That's a fair question.
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, 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 Sotomayor brought up, one could say that when the president is using the trappings of his office to achieve a personal gain, then he's actually not acting officially.
Oh really?
If it's good politics, he wants to get re-elected?
That allegation that this was really motivated by an improper private purpose could be made in every single case.
No, I understand that, but it would have to be made.
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?
I agree.
The objective, or I'm not sure I agree, but the point I would make response to that is, in Fitzgerald against Nixon, this court emphasized that that would result in an intrusive.
Can I just ask you another quick question before my colleagues take it over here?
At the beginning of your analysis, when you were giving your opening statements, you suggested that the lack of immunity and the possibility of prosecution in the presidential context is like an innovation.
And I understood it to be the status quo.
I mean, I understood that every president from the beginning of time, essentially, has understood that there was a threat of prosecution and for no other reason than the Constitution suggests that they can be prosecuted after.
After impeachment!
Why can't he say that?
forever that presidents are amenable to a threat of prosecution.
After impeachment.
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 founder's 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.
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.
So what was up with the pardon for President Nixon?
If everybody thought that presidents couldn't be prosecuted, then what was that about?
Well, he was under investigation for both private and public conduct.
He could have still been impeached.
I think everyone has properly understood that the president, since, like, President Grant's carriage riding incident, everyone has understood that the president could be prosecuted.
Counsel, on that score, there does seem to be some common ground between you and your colleague on the other side that no man's above the law.
Yes, Nixon could have still been impeached.
...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 enjoy some immunity.
And I'm sure we're going to spend a lot of time exploring that.
But the D.C. Circuit in Blazing Game...
Chief Judge there, joined by the panel, expressed 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 Katz'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 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 the other side, that also should be treated as immune.
Those are the aspects.
And that left open, in that case, the possibility of further proceedings and trial.
Exactly right.
If impeached and convicted.
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 Creighton, where the court said there'd be kind of two stages of these further proceedings.
There's looking at the indictment itself, or in that case it was 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 Forsyth and so forth would have to occur before any other proceedings in the district.
Mr. Sauer, you began by explaining why you believe that immunity from criminal prosecution is essential for the proper functioning of the presidency.
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 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 in the lower courts here.
We think it would be insufficient because, again, that long line of cases 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 would come into play.
And of course, once you can make that allegation, all of a sudden you've opened the door.
You no longer have a per se clear, bright, bright rule.
You have a determination in every single case.
Well, 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 viewed through the lens of Judge Katz's 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 understood the court to be asking that.
No, this would...
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 on purely objective grounds when the president invokes an official power in taking the action that is at 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, with a strong degree of deference to what it is.
I'm sorry.
If I understood Justice Alito, 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.
If it's an official act that's not flawed, it's in the realm of law.
He can correct me if I'm wrong.
That was the question.
That, I think, would be a superior rule than the categorical denial that emerged in the trial court here.
I'm not quite sure why he used the word plausible, because that seems to negate...
You might as well give absolute if you're saying plausible, because anybody could argue plausibility.
We don't even require plausible.
We require reasonable and qualified immunity.
Well, I mean, one might argue that it isn't plausibly legal to order SEAL Team 6, and I don't want to slander SEAL Team 6, because they're, no, seriously, they're honorable.
They're honorable officers, and they are bound by the Uniform Code of Military Justice not to obey unlawful orders.
But no, I think one could say...
Assassinating Osama bin Laden or killing Osama bin Laden?
...that that action would be legal.
And I'm sure you've 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.
Yeah, like killing an American citizen with a drone train.
That important objective determination may well be an interesting approach to take.
So, apply it to the allegations here.
What is plausible about the president insisting in creating...
Don't say fake.
Don't say fake.
Oh, shut your face, Sotomayor.
A fraudulent.
How about an alternate?
Alternate under the law.
Oh, I see what she's saying.
Is that plausible?
That that would be within his right to do?
Absolutely, Your Honor.
We have the historical precedent we cited 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 Rutherford B. Hayes.
The notion that it's completely implausible, I think, just can't be supported based on the face of this indictment.
Knowing that the slate is fake.
Knowing that the slate is fake that they weren't actually elected.
You mean like what they did in Hawaii in 1968?
He knows all those things.
The indictment itself alleges, I dispute that characterization, the indictment affixes the word label to the so-called fraudulent electors.
It affixes the word fraudulent, but that's a complete mischaracterization.
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, 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 Martin Hicks.
Where do you think the D.C. Circuit went wrong in how it determined what was official versus what's personal?
Well, I read the opinion below in this particular case as adopting a categorical view.
It does not matter, is the logic of their opinion, because there is no immunity for official acts, and therefore, 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 determination with respect to what's official and what isn't official there.
We agree with most of what that opinion says.
And for some official acts...
That are not within the Article 2 exclusive power.
So official acts, but not within the Article 2 exclusive power.
Even for those, I assume you would think that a clear statement has to be required, a clear statement in the statute covering the president if the president's official acts are going to be criminal.
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Level when it comes to the unrestrictable powers, like as in this indictment.
Well, I'm assuming the exclusive powers are walled off and can't be prosecuted before there's a lot of official powers that are not exclusive to the president under his Article II authority.
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 and can...
That's absolutely correct.
And that'd be consistent with Franklin and Public Citizen in cases along series of other clear statements.
Can I follow up on that?
Go ahead.
So you concede that private acts don't get immunity.
We do.
Okay.
So in the special counsel's brief on pages 46 and 47, he urges us, even if we were to decide or assume that there was some sort of immunity for official acts, that there were sufficient private acts in the indictment 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.
Petitioner turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results.
Private?
As alleged.
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 a co-conspirator attorney directed that effort.
You write 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 is official is 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 fairness.
Thank you.
I don't know why he would have conceded that.
I don't think that's right.
Thank you, counsel.
And what is the consequence in terms of going forward with your...
If you look at 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 address itself, but remand for a Brewster-like 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.
Well, if you expunge the official part from the indictment, how do you...
I mean, that's like a 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...
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.
Then impeach and convict!
What's so hard about this?
This particular indictment where we say overconduct 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 electors allegations don't really.
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 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 set against this court's case law, saying you don't look at what immunity determinations, the improper motivation or purpose.
Thank you.
Justice Thomas.
Mr. Sorry, in assessing the official acts of a president, do you differentiate between the 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.
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.
Did you, 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 Meese and Attorney General Mukasey.
And it points to a very important issue here, because one of their arguments is, of course, that, you know, we should have this presumption of regularity.
That runs into the reality that we have here, an extraordinary prosecutorial power being exercised by someone who was never nominated by the president or confirmed by the Senate at any time.
So we agree with that position.
We hadn't raised it yet in this case when this case went up on appeal.
Justice Alito?
expunged from the indictment would not achieve very much unless evidence of those official acts were precluded at trial.
So is that what you're saying?
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 in a very analogous context.
Thank you.
I'm a little bit confused by that.
If you have a scheme to defraud...
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 bride.
Similarly here, I don't think the indictment is charging.
That the obstruction 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 is, and I think this ties into the Chief Justice's question about a one-legged stool.
Brewster and Johnson and subsequent cases like Keltowski versus Miner 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 Vesting Clause.
Justice Kagan?
Can I continue on in Justice Barrett's vein a little bit and ask you about some of the allegations of the indictment and whether they're official acts or not in your view?
So, the defendant signed a verification affirming false election fraud allegations made on his behalf in a lawsuit filed in his name against the Georgia governor.
I don't think we've disputed that that's official.
I'm sorry, that is unofficial.
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 based on, for example, the historical example of President Grant is something that was done pursuant to and ancillary and preparatory to the exercise of the core recommendation clause power.
I'm not happy with the way this is going.
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.
Well, attempting to defend the integrity of the election, I mean, that's the defense.
The allegation is that he was attempting to overthrow.
Then impeach him.
Exactly right.
And neither allegation of what the purpose is should make a difference as to whether it's immune.
That is extremely strong precedent from this court.
Does it strike you as odd that your understanding of immunity goes way beyond what OLC has ever claimed for the former president?
I view the OLC opinions here as strongly supporting us because any time 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.
I agree.
I don't know if I'm misunderstanding something.
What OLC has always said is that sitting presidents get immunity, but former presidents, no.
Now, there might be...
A different argument made about whether a statute or whether a statute as applied to particular conduct is properly available against the president.
But that's a very different argument than the immunity claim that you're making here, which OLC has definitively not supported.
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 cite 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 interpret it to avoid that.
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 analysis or even the Fitzgerald analysis that we've been talking about.
How about if a president orders the military to stage a coup?
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 prohibits the military from following a plainfully unlawful act.
If one adopted Justice Alito's 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, has to be impeached and convicted before he can be criminally prosecuted.
But I emphasize to the court...
Well, he's gone.
Let's say this president who ordered the military to stage a coup.
He's no longer president.
He wasn't impeached.
He couldn't be impeached.
But he ordered the military to stage a coup.
And you're saying that's an official act.
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 impeached.
What does that mean, depend on the circumstances?
He was the president.
He is the commander-in-chief.
He talks to his generals all the time, and he told the generals, "I don't feel like leaving office.
I want to stage a coup." Is that immune?
If it's an official act, there needs to be impeachment and conviction beforehand because the framers viewed that kind of very low risk.
If it's an official act, is it an official act?
If it's an official act, it's impeachment.
Is it an official act?
On the way you've described that hypothetical.
It could well be.
I just don't know.
Again, it's a fact-specific context.
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 a whole series of structural checks that have successfully, for the last 234 years, prevented that very kind of extreme hypothetical.
And that is the wisdom of the framers.
What they viewed as the risk that needed to be guarded against was not the notion that the president might escape a criminal prosecution for something very, very unlikely in these unlikely scenarios.
They viewed much more likely and much more destructive to the republic the risk of factional strife discussed by George Washington.
The 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?
I would say two things in response to that.
They did put in immunity clause, and in a sense, they put in the executive vesting clause, which was originally understood to adopt a broad immunity principle that set forth in the very broad language of Marbury against Madison.
And also 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 Franklin says, "We don't have that.
That's not an option." Everybody cried out against that as unconstitutional.
The structural check we're adopting is impeachment, and they're very clear on that in pages 64 Thank you.
Justice Gorsuch?
Just returning to the Chief Justice's hypothetical about the ambassador sale and bribery.
Congress has a statute that specifically names the president and says he can be criminally prosecuted for bribery, presumably after he leaves office.
Outside the core areas 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 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'm struggling to see why in that case perhaps the evidence could come in.
The strongest possible case, in our view, is what you've described as kind of the core executive powers, the unrestrictable powers within the meeting of CELA 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's just as if it's an official act, which here we would say applies basically to the outer perimeter test of Fitzgerald against Nixon.
That doesn't come in.
What would happen if presidents were under...
Fear that their successors would criminally prosecute them for their acts in office.
It would govern their actions while president.
Whether they're engaged in drones, all the hypotheticals.
I'm not going to go through them.
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...
I didn't think of that until, Your Honor, acid.
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.
Happily, it's never been presented to us.
Well, I mean, it was floated in Nixon.
If the doctrine of immunity remains in place, that's likely to remain the case 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, whereas 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?
Of course it makes him susceptible to blackmail.
Extortion.
Which is boring and fearless action in the face of controversy.
And perhaps if he feels he has to, he'll pardon himself every four years from now on.
But that wouldn't provide the security because the legality of that is something that's never been addressed.
That you've discussed is subordinate liability.
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 be— If the president gives an unlawful order, call in the troops, all the examples we've heard.
Every subordinate beneath him faces criminal prosecution, don't they?
That is what Gouverneur Morris said explicitly at the Constitutional Convention, that his co-agitators could be prosecuted.
There is an important caveat, because, of course, there would have to be a statute that would govern that for them to be prosecuted.
Well, we've got lots of statutes.
The criminal law books 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 Marbury 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 can be immediately prosecuted.
That would at least be a very...
Very difficult question.
But the fundamental point of drawing that distinction between the president himself and his co-agitators in the word of Gouverneur Morris at the Constitutional Convention is an excellent distinction.
Justice Kavanaugh?
Just to follow up on the OLC opinions question, as you read them, and I think I read them, they articulate a clear statement rule as do this court's cases 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 can't be charged for any official acts under these statutes.
That's absolutely correct.
They're extended way beyond.
That's separate from the question what's official versus what's personal.
But for that bucket that is 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, these statutes, the ones charged in the indictment, are just way far afield from purporting to criminalize in clear terms the president's official acts.
And then, just to clarify this, the president's not above the law.
The president's not a king.
The founders thought that.
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 an impeachment conviction, could be prosecuted in our view.
And we'd emphasize the whole series of structural checks in addition to that, which deter those and have successfully deterred presidential misfeasants for 234 years.
Then on the source of immunity...
It's not explicit in the Constitution, but also executive privilege is not explicit in the Constitution.
Yet in United States v.
Nixon, the Court unanimously said that the Article II executive power in the Constitution encompassed executive privilege, and the same principle presumably would apply to executive immunity being encompassed within that executive power as 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 Madison to Thomas Jefferson at the time of the founding where Madison said, hey, as a 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 D.C. Circuit or the district court?
Most likely the district court under the logic of Anderson.
Thank you.
Justice Barrett?
So, Mr. Sauer, 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 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 Senator General Borg, which is reaffirmed in the OLC opinions on this.
Where Solicitor General Bork 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 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 And so we say that that practice, whatever its validity, should not be extended to this novel context where it clashes with the constitutional structure.
What if the criminal conduct isn't discovered until after the president is out of office?
You can impeach a former president.
You say the framers assume the risk of under-enforcement by adopting these very structures.
As the former president said in Morrison against Olson, the separation of powers prevents us from righting every wrong, but it does so that we do not lose liberty.
Okay, and the special counsel makes 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?
If convicted.
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.
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 Congress has purported to do so.
A few.
Two or three.
They haven't done a comprehensive review.
I think it looks like all they did was text search for president in the 18 U.S. Code.
Again, under Franklin, that's a very...
The telling indication that the word president is not in the statute isn't necessarily a magic word requirement, so to speak.
But more fundamentally than that, more fundamentally than that, they can see there are statutes that exist.
In addition to that, much impeachment could occur as a result of private conduct.
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 Constitutional Convention, is principally concerns about private conduct, which, of course, we concede are not immune.
Okay, so just 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 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.
In your discussions with Justice Kavanaugh, it 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.
There you go.
That's the door.
End of it.
How do you determine what's private?
When does it become private?
Because, of course, if official acts didn't get absolute immunity, then it wouldn't matter.
We wouldn't have to identify which are private and which are public.
Correct?
That, in fact, is the approach of the D.C. Circuit.
There's no determination that needs to be made.
Right, but 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 understand that we're only doing that because of an underlying assumption that the public acts get immunity.
So let me explore that assumption.
Why is it, as a matter of theory, and I'm hoping you can sort of zoom way out here, that the president...
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 high-powered jobs, who make a lot of consequential decisions, and they do so against the backdrop of potential criminal prosecution if they should break the law in that.
And we understand and we 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 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 but making a bad decision after he leaves office?
But other people who have consequential jobs...
Nobody is the chief executive officer.
...make those determinations against the backdrop of that same kind of risk.
So what is it about the president?
I mean, I've heard you say it's because the president has to be able to act boldly, make...
Oh, sure.
There's only one president, Etanji.
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 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.
Commander-in-chief.
We can see that the president was sort of different than the ordinary...
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 is required to follow the law.
But he's not if there's no threat of criminal prosecution.
There is a threat if he's convicted from just doing whatever he wants.
All the structural checks that are identified in Fitzgerald and a whole series of this court's cases that go back to Martin v.
Mott.
For example, impeachment, oversight by Congress, public oversight.
There's a long series of them.
Fitzgerald directly addresses this in a civil context.
I'm not sure that that's much of a backstop.
Oh, impeachment and conviction and removal from office?
About the president being chilled.
I think that we would have a really significant opposite problem if the president wasn't chilled.
Those kinds of powers, the most powerful person in the world, with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes.
That is wrong.
impeachment, conviction, prosecution.
...from turning the Oval Office into, you know, the seat of criminal activity in this country.
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 as something that everybody cried out against as unconstitutional.
And what George Washington said is, we're worried about factional strife, which will...
Let me put this worry on the table.
If the potential for criminal liability is taken off the table...
It's not ever taken off the table, KGB.
...that future presidents would be emboldened to commit crimes with...
They can be impeached any day of the week.
Presidents from the beginning of time have understood that that's a possibility.
That might be what has kept this Oh my goodness, is this dumb.
This is stupid.
Nobody's saying that.
Wrong!
That we would have a worse problem.
You're worried because you don't understand the problem.
Feeling constrained to follow the law while he's in office.
Impeachment, conviction, prosecution.
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 political...
All right, let me ask you another question.
Let me ask you another question about this clear statement line of questioning.
First of all, 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 D.C. Circuit something about a clear statement with respect to statutes?
Yes.
In our separately filed motion for motion dismissed based on statutory grounds, we extensively argued not just this clear statement rule, but a whole panel.
Right, but 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.
Why?
Especially because the court expanded the question presented from what either of the parties submitted.
But not to statutory interpretation.
I mean, that argument goes to statutory avoidance, 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, does immunity exist?
And to what extent does it?
And the argument is, immunity at least exists to the extent that it raises a grave constitutional question But that's totally circular.
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 and rule the way that it's come up in the context of an immunity question.
But let me ask you this.
One more question.
This is going badly, people.
Yeah, so what is the argument that...
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 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 what is the clear statement that would have to be made in this context?
Under impeachment 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, counsel.
That didn't go well.
Mr. Dreben?
Mr. Chief Justice?
I say nothing.
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.
Correct.
No, it wouldn't.
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 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 III 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.
Mr. Drebin, does the president have immunity or are you saying that there's no immunity, presidential immunity, even for official acts?
Yes, Justice Thomas, but I think that it's important to put in perspective the position that we are offering the court today.
The president, as the head of the Article II 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.
Over in not-so-distant past, the presidents or certain presidents have engaged in...
Various activity, coups or operations like Operation Mongoose when I was a teenager, and yet there were no prosecutions.
Why?
If what you're saying is right, it would seem that that would have been ripe for criminal prosecution of someone.
So, Justice Thomas, I think this is a central question.
The reason why...
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...
Oh, come on.
At peak confidence during peak pollen season, live Clareton Clare.
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 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 exception to liability, and it is read into federal law unless Congress takes specific action.
to oust it, which it never has done as far as I am aware, and in a case in which the 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 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.
The Court of Appeals below, whose decision we're reviewing, said Do you agree with that statement?
Well, I think it sounds tautologically true, but I want to underscore that the obligation of a president is to take care that the laws are faithfully executed.
And when you're executing citizens...
Well, I would not suggest that that's either the proper approach in this case or certainly not the government's approach.
A prosecution does, of course, invoke...
Federal criminal law.
The allegations have to be presented to a grand jury, which votes upon the indictment.
Well, that's what 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.
To get an indictment.
For a prosecutor to get a grand jury to...
Bring an indictment.
Ill indict a ham sandwich.
Alliance on the good faith of the prosecutor may not be enough in some cases.
I'm not suggesting here.
So if it's tautological, and those are the only protections that the Court of Appeals below gave...
Just allege it and prosecute and harass.
You're not defending that position.
Why shouldn't we either send it back to the Court of Appeals or...
Issue an opinion making clear that that's not the law.
Well, 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 ameliorate 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, in political animus, without adequate evidence.
Without adequate evidence.
A politically driven prosecution would violate the Constitution under Waite 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 I don't know.
Oh, my goodness.
They took a note, so they're not going to abuse of their power.
...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 animus.
This court relied on...
Those very protections in the Vance case just two years ago.
What concerns me is, as you know, the Court of Appeals did not get into a focused consideration of what acts were talking about or what documents were talking about because of its adoption of what you termed, and I agree quite correctly, as a tautological statement.
Because the fact of prosecution was enough to take away...
Any official immunity, the fact 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 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 Fitzgerald.
We endorse both of those holdings.
But what is important is that no public official has ever had the kind of absolute It's not absolute, ever.
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 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 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 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.
Mr. Dribin, 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, Justice Alito, of the general principle that courts construe statutes to avoid serious constitutional questions, and that has been the longstanding practice of the Office of Legal Counsel in the Department of Justice.
All right, so this is more, I think, than just 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 as applied to a former president, then...
That is something that has to be litigated at trial.
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 Great expense, and it may take up a lot of time.
And during the trial, 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.
You take the form if it takes the form that you have proposed.
Now, 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 of criminal justice.
Why would that be?
Why would that be, Michael?
Congress is unlikely to crank up the machinery to do it.
It's not supposed to be easy to sue the president or to indict the president.
And if the impeachment trial has to occur after the president has left office, there's an open question about whether that can happen at all.
You're arguing against most far-reaching.
- Correct.
- Aspects of Mr. Sauer's argument, right?
- That is correct.
And let me turn then to why.
- Well, what about to unpack it a little more?
Do you agree that there are some aspects of Article II 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, 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 Let's hear the answer to this.
So, Jessica, I'd 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 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.
You said unless...
Sorry to interrupt, but I want to just get this out and you can incorporate it in the answer.
You said unless there's a serious constitutional question.
Well, it's a serious constitutional question whether a statute can be applied to the president's official act.
So wouldn't you always...
Interpret the statute not to apply to the president, even under your formulation, unless Congress had spoken with some clarity.
I don't 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 371 conspiracy to defraud the United States can be used against a lot of presidential activities historically with an...
Creative prosecutor who wants to go after a president.
Well, let me try to backtrack a little bit.
That's what we're talking about historically, is the risk and going forward, the risk.
So you can take all of that.
I think that 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 balanced protection that better serves the interests 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 at the outset to the statutory construction question that you raised.
The Office of Legal Counsel has said the offense of bribery, of course, applies to the president.
It does not name the president, Justice Corsuch.
Section 201 does not specifically name the president.
I would assume that's personal.
Well, I think that it's...
That's what Brewster said.
Bribery statute 607 says the president.
I've got it in front of me.
And so 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.
Did you agree that there are some core functions of the executive that present conduct that Congress cannot criminalize?
Yes.
So 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.
Okay, okay.
Can we call it immunity just for shorthand's sake?
So I think we are kind of narrowing the ground of dispute here.
It seems to me there is some area you concede that And 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 got that, but I want to explore that, okay?
So, for example, let's say a president leads a mostly peaceful protest sit-in in front of Congress because he objects to...
A piece of legislation that's going through.
And it, in fact, delays the proceedings in Congress.
Now, under 1512C2, that might be corruptly impeding an official proceeding.
Is that core and therefore immunized, or whatever word, euphemism you want to use for that?
Or is that not core and therefore prosecutable?
Without a clear statement that applies to the president.
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.
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 why I don't think that that would be a prosecution that would be valid.
First, I think you need to run through all of the sort of normal 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.
I thought you said it.
That was my question.
Yes, I understand.
And you said it fell outside that core, we'll call it immunity for simplicity's sake.
Yes, I understand.
But there's a separate category.
So why couldn't he be prosecuted for leading a civil rights protest in front of the Capitol 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...
He could have given speeches against it.
He did.
Yes.
But he left.
He did something more, and it corruptly impeded and sought to influence an official proceeding.
Well, so I don't know.
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'd be a question of whether...
I assume it does.
I will assume it.
Then there's a question of whether he has the state of mind necessarily to violate it.
Nobody knows what corrupt intent means.
We've been around that tree twice already.
We will probably find out.
And maybe it means that he knows that he was doing wrong, is what the government told us.
He knows he's doing wrong.
He knows he shouldn't be up there blocking a congressman from going on.
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 attorney general on the lawful scope of the president's We can go down two tracks here.
One is that the Attorney General advises him that as an incident of his Article II authority and in carrying out the functions of the presidency, he can lawfully participate in that protest.
it's kind of the First Amendment analog to 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 So, who's president then?
Who's the president?
No.
If he gets a negative opinion from the Attorney General, he still couldn't be prosecuted?
I would assume that most Presidents are not going to take a...
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. Drubin, can we go back to the bribery statute?
I, like you, understand that the only thing that is covered by that...
The president is barred from soliciting or receiving funds in any room or building in the United States.
That is correct.
It's an extremely...
Official building.
It's a very limited mention of the president.
And it really, I think...
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.
It's a kind of small number on both sides.
Now, Justice Barrett made the point that if we say a president can't be included in a criminal law unless explicitly named, then that would bar the Senate from impeaching him for high crimes or misdemeanor, because that means that he's not subject to the law at all.
But we've established it doesn't even need to be a crime for impeachment, right?
You can't escape.
Justice Sotomayor, 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.
Yes.
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 or violating it.
All right.
Now, could we go further on a clear statement?
That's bullshit because it says it in the Constitution.
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'll look at?
I'm thinking specifically about whether the EPA covered the president.
She's so stupid.
I mean, it's terrible.
And what we did there was analyze what powers were being given.
In the lawsuit, et cetera, 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, 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.
It's in the Constitution.
It says he can't take a bribe.
That the way that this court has interpreted statutes that do carve out the president, Justice Kavanaugh asked about this, was very context-specific.
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 abuse of discretion, which is a very extraordinary thing to do.
I think even going back to Marbury, this is perhaps a point on which I agree with my friend, Marbury says discretionary acts of the president are not the kind of thing that the court reviews.
Could I go back to your brief and 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, then he would not be subject to all criminal laws.
That is 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 that have to do with the president and 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.
Well, Mr. Treben, do you really...
I mean, 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 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 peculiarly precarious position?
He's in a special 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.
He's supposed to be faithful to the laws of the United States and the Constitution of the United States.
So is everybody.
And making a mistake is not what lands you in a criminal prosecution.
Oh, I'm sorry.
There's been some talk about the statutes that are issued in this case.
I think they are fairly described as malamense statutes.
Oh boy, well this guy's not doing any better.
Hopefully the court understands.
With respect to one of the most important functions, namely the certification of the next president.
I want to dispute that particular application of that 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?
That fraud under that provision, unlike under most other fraud provisions, doesn't require any 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.
Yeah, as I said, I'm not discussing the particular facts of this case, but it applies to any 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 see-enter.
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 II duties.
And particularly in a case like this one, 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 were expected potentially to want to do that.
So the potential for self-interest would explain why the state...
The states conduct the elections.
They send electors to certify who won those elections and to provide votes.
And then Congress, in an extraordinary joint session, certifies the vote.
And the president doesn't have an official role in that proceeding.
Oh, no, of course not.
It's not the president's duty to make sure elections are free and fair.
You can't use fraud to defeat that function.
You can't obstruct it through deception.
You can't deprive millions of voters of their right to have their vote counted for the candidate who they chose.
It says the guy who wants to keep Trump off the ballot.
Mr. Salido?
There's nothing more to say here.
Could we just briefly review the layers of protection that you think exists?
And I'm going to start with what...
The D.C. 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.
How robust is that protection?
I mean, most of the vast majority of attorneys general and Justice Department...
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 had been exceptions, right?
Both among attorneys general and among federal prosecutors.
There have been rare exceptions, Justice Alito, but when we're talking about layers of protection, I do think this is the starting point.
And if the court has concerns about the robustness of it, I would suggest looking at the charges in this case.
Well, I'm going to talk about this 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.
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 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.
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 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.
I understand that, Mr. Dreven.
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?
Zero.
Well, it forms 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 This is one of them.
There's the old saw about indicting a ham sandwich.
There you go.
You have a lot of experience in the Justice Department.
You come across a lot of cases where the U.S. attorney or another federal prosecutor really wanted to indict a case and the grand jury refused to do so.
There are such cases.
Yes.
But I think that there's an eclipse, too.
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 where they don't have evidence to prove guilt beyond a reasonable doubt.
That's the dumbest thing I've ever heard in my life.
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 vindication, perhaps on appeal.
Isn't that correct?
It is correct, Justice Alito, 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 it's common ground that all former presidents have known that they could be indicted and convicted.
And Watergate...
smoking gun tape involved President Nixon and H.R. Haldeman talking about and then deciding to use the CIA Mr. Sauer and others have identified events in the past where presidents have engaged in conduct that might have been.
been charged as a federal crime.
And you say, well, no, that's not really true.
This is page 42 of your brief.
So what about President Franklin D. Roosevelt's decision to intern Japanese Americans during World War II.
Couldn't that have been charged under 18 U.S.C.
241 conspiracy against civil rights?
Today, yes, given this court's decision in Trump versus Hawaii, where the court said Korematsu was overruled.
President Roosevelt made that decision with the advice of his attorney general.
Is that really true?
I thought Attorney General Biddle thought that there was really no threat of sabotage, as did J. Edgar Hoover.
So I think that there is a lot of historical...
Controversy, but it underscores that that occurred during wartime.
It implicates potential commander in chief, concerns, concerns about the exigencies of national defense that might provide an as applied Article II challenge at the time.
I'm not suggesting today, but the idea that a decision that was made and ultimately endorsed by this court, perhaps wrongly in the Korematsu case, would support How about Obama killing a 60-year-old boy?
America.
I don't think that would have been satisfied.
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 counsel.
And I wasn't clear what your answer is.
It's so stupid.
If the president gets advice from the attorney general that something is lawful, is that an absolute defense?
Yes, I think that it is under the principle of entrapment by estoppel.
This is a due process doctrine that we referred to in our brief, our reply brief in Garland v.
Cargill, this term at page 19, where we cited authority of this court that if an authorized government representative tells you that what you are about to do is lawful, it would be a root violation of due process to prosecute you for that.
Can Trump get some legal advice as to what he could do if they're going after his attorneys for that legal advice?
Holy hell.
Everyone should clip that part right there.
The president nominates the attorney general and the Senate...
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.
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 only authority that I'm aware of is a member of the Office of Legal Counsel wrote on a memorandum that there is no self-pardon authority.
As far as I know, the department has not addressed it further, and of course this court had not.
Well, when you address that question before us, are you speaking in your capacity solely as a member of the special counsel's team, or are you speaking 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.
Don't you think we need to know the answer, at least to the Justice Department's position, on that issue in order to decide this case?
Because if a president has the authority to pardon himself before leaving office, and the D.C. 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 I really doubt that, Justice Alito.
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.
Those are adequate deterrents, I think, so that this kind of dystopian regime is not going to evolve.
Let me end with just a question about what is required for the functioning of the stable democratic society, which is something that we all want.
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 incumbent.
Of course.
All right.
Now, if an incumbent who loses a very close, hotly contested election There you go.
Will that not lead us into a cycle that destabilizes the functioning of our country as a congressman?
No, it paralyzes the president.
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 Alito.
Of course you do.
Can you say why?
Mechanisms to contest the results in an election.
And outside the record, but I think of public knowledge, Petitioner and his allies filed dozens of electoral challenges.
And my understanding is lost.
All but one that was not outcome determinative in any respect.
There were judges 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 is 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 it.
Thank you.
Justice Sotomayor?
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 fail-safe 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-conviction remedies for that.
But we still fail.
We've executed innocent people.
Having said that, Justice Alito 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 Sotomayor, and I also think that there are additional checks in the system.
Of course, the constitutional framers designed a separated power 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 goodwill and faith in democracy.
Crimes that are alleged in this case that are the antithesis of democracy.
I'm sure they remind that.
Allegations.
I believe words that have 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.
Go through 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.
What are those small categories?
Pardon power.
Pardon.
Veto.
Veto, foreign recognition, appointments.
Congress cannot say you can't appoint a federal judge who hasn't received, you know, a certain diploma or hasn't achieved a certain age.
There are a few other powers.
He's commander-in-chief.
Commander-in-chief is...
On the list, but I want to add to my answer on that, that Congress has substantial authority in the national security realm.
Congress declares war, it raises armies.
So is killing someone in the absence of war?
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.
In the next category, we've left the core set behind, but we're still in the world of official actions, and that's where you say there are 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 in the course of responding to that, You know, I'm sort of thinking of something like the OLC opinion, which says bribery.
The president can be tried and convicted of bribery, even in the part of the bribery statutes that do not say the president.
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 Counsel 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 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 still the president could I think that bribery is the kind of hybrid that illustrates the abuse of...
Public office for private gain that we think is paradigmatic of the kinds of things that should be not held to be immune.
In a bribery case, the public official cannot extract the bribe without the official power to offer as the quid or the pro.
I guess the quo, actually.
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 indictment or that would violate federal criminal law similarly involve the misuse of official power for private gain.
So if you were to say what the line is in this category, 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 general principles, I think, kind of emerge from looking at what the Office of Legal Counsel has done.
So, for example, with respect to a federal statute that prohibited appointments to courts of people within certain degrees of consanguinity.
The Office of Legal Counsel 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.
The Office of Legal Counsel 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 gin up an artificial grassroots campaign that gave the appearance of emerging from the people, but it was really top-down.
And the Office of Legal Counsel said the president and officials who carry out the president's mandates...
are subject to that statute.
So that's a more nuanced one.
And the third example that I will give you is the statute that would permit prosecution for contempt of Congress.
The Office of Legal Counsel 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 manner.
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...
No, because it's in Article 2, Section 4. Across the board,
in such a wide range of applications, somewhat analogous to overbreadth analysis, infringe on the president's power so that we're going to say that the president is just out.
Now, that set of issues, they seem important and may occasionally be difficult.
They also seem not really before us in the way Justice Jackson suggested earlier.
Do you think they are before us?
We should just clear it up.
Here it is.
We have a case.
What else could we do?
How should we deal with this?
That there are these lingering issues that go beyond the question of whether there's the kind of absolute immunity that 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 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 v.
Grubbs, for example, the court reached out to decide whether anticipatory warrants are valid under the Fourth Amendment before...
We're 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 precedent that bears some analogy to this is Vermont Natural Resources Agency versus United States ex-REL Stevens.
It was a Key Tam case, and the first question was whether a state agency was a person within the meaning of the False Claims 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.
How much did good car insurance cost you a month?
$80?
$120?
Much more than that?
Goodbye.
I want to be clear that for overall government equities, we are not wild about parties who raise an immunity case that can be 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 1 branch and the Article 2 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 submission is that Congress actually did apply these criminal laws to official conduct, the court may wish to exercise its discretion to resolve that issue.
Okay, I have one last set of questions, which has to do with the official un- And I'm just wondering what you took from his responses and also how you would characterize what is official and what is not official.
In this indictment?
In this indictment?
I think Petitioner conceded that there are acts that are not official.
We should not have conceded that.
I think I disagree with him on everything else that he said about what is official and what is not.
Organizing fraudulent slates of electors, creating false documentation that says, I'm an elector, I was appointed properly, I'm going to send 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 official conduct.
That is campaign conduct.
And I think that the D.C. Circuit in the Blassing Game case did draw an appropriate distinction.
A first-term president who's running for re-election can act in the capacity as office seeker or office holder.
And when working with private lawyers and a private public relations advisor to gin up fraudulent sleights of electors...
That is not any part of a president's job.
I'm sorry.
There's an allegation in the indictment that has to do with the removal of a Justice Department official.
Is that core protected conduct?
We don't think that that's core protected conduct.
I don't think 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...
...
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.
This occurs very late in the election cycle after many other schemes had failed.
And at that point, 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, petitioners are 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 a 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 of removal power and it 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...
So this is one of the most difficult questions for the Department of Justice, and I want to explain why that is.
If we are operating under a Fitzgerald versus Nixon lens and looking at this the way that we look at things when there is a private lawsuit filed against 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 deleterious 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 the capacity as office seeker, or was he acting in the capacity as...
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 the Blazing Game framework was the appropriate one.
Largely, yes, Justice Gorsuch.
We agree.
With the idea of 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, then the Fitzgerald immunity kicks in.
I think we would look more at the content of the actual interaction in order to make that determination than Blassingame 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 suggesting.
So Blassingame adopted a generally very favorable pro-government framework that we endorse in private civil cases.
Not here.
Because we don't think that Fitzgerald applies in the criminal context.
No, I understand that.
But putting that aside, the distinction between official act and private office seeker, their test is, you think, good enough for government work?
Official act, private office seeker distinction.
On this one, the department hasn't taken a next step since...
The Blassing Game decision.
But let me offer a few thoughts that Justice Scorsuch, I think, might clarify it.
The Blassing Game decision focused on objective contextual indications to try to see whether the president was acting as a campaigner as opposed to an office holder.
I think 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 friend...
Briefly.
An allegation.
He fraudulently submitted...
Between petitioner and a state official, a petitioner is alleged to have said, all I need you to do is to find me 11,000 votes and change.
I think if you look at that content, it's pretty clear that petitioner is...
I'm 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.
I'm not hearing any objections to it.
Other than I think that the D.C. Circuit placed more 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 it seems to me that we're narrowing the ground of dispute here considerably.
Do we look at motives, the president's motives for his actions?
I mean, 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.
Absolutely.
That's a good question.
Is that a relevant consideration?
He's always acting with the intent to get reelected.
So I am thinking of this more as looking at the objective of the activity as opposed to the kind of 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 wants to get reelected.
Everything he does can be seen through the presidential candidate, by critics at least.
Of his personal interest in re-election.
Yes.
And so you wouldn't want that, I think you would say, personal motivations off limits.
Well, that'll be a mixed personal and presidential.
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 motive.
That's right.
That's right.
All right, so then we're in the non-core powers where we're fighting over.
What role do motives play there?
I mean...
One could remove 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?
So here I might need to differentiate between the principal officers that this court, in cases like Myers and Selah Law, has regarded as having a constitutional status of being removable at will from inferior officers where Congress does have some regulatory latitude to impose restrictions on removal.
Sure.
Let's put that aside.
Yeah, I understand that.
Put in that aside.
Yes, appointing a principal officer is a core power.
I am not 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 that's what I was wondering.
Do motives come into the core power analysis or not?
And now I'm hearing...
I thought I heard no, and now I'm hearing...
Maybe.
I think maybe might be a little bit more appropriate because it's not involved in this case.
The department has not had to take a position on exactly how 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...
These non-core powers and maybe core powers where a president is acting with, at least in part, a personal interest in getting reelected.
Everything he does, he wants to get reelected.
And if you're allowing in motive to color that, I'm wondering how much is left.
So 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 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.
I'm doubtful that it in fact does, because I don't think criminal laws generally operate on motives as opposed to objectives and I mean, you can reframe a motive as 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.
Putting that aside, that really, to me, falls in a very different category.
And it is also possible-So there's some motives or intents that are cognizable and others that aren't.
I mean, it's-Yeah, it depends on what they want.
When we look back at the injunction, back to Marbury in the early cases, you can't enjoin a president.
Also meant you couldn't hold him in contempt.
A sitting president.
There's no president left to enjoin if he's not sitting there.
Well, let me just spin this out just a second.
And it didn't matter what the president's motive We're not going to look behind it.
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.
You can't enjoy a non-sitting president.
I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives, whether it's re-election or who knows what corrupt means in 1512, right?
We don't know what that means.
Maybe we'll find out sometime soon.
But the dangerousness of accusing your political opponent of having bad motives.
That's all they have.
If that's enough to overcome your core powers or any other limits, reactions, thoughts.
Yeah, so I think that you're raising a very difficult question.
Trust us, we'll do it good.
That is the idea.
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 bad political motive in that sense.
I understand that.
I appreciate that.
Yes.
And I think I would start by looking at the statutes and seeing what restrictions they do place on the president's conduct.
And, for example, the statute that prohibits 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 the presidency.
Well, that's what's going on.
And in 1512 C2, we may have different views on the clarity and the scope of that statute.
I think if the court does interpret corruptly as involving a consciousness of wrongdoing and elevates that to consciousness of illegality.
Then we're in a different realm.
Wanting to get re-elected is not an illegal motive, and you don't have to worry about prosecuting presidents for that.
Thank you, Mr. Kavanaugh.
Justice Kavanaugh?
It's the trust-me-bro argument.
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.
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?
The Solicitor General of the United States.
Part of the way in which the special counsel functions is as a 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 the Solicitor General?
Yes.
Okay.
Second...
Like Justice Gorsuch, I'm not focused on the here and now of this case.
I'm very concerned about the future.
And I think one of the court's biggest mistakes was Morrison versus Olson.
Okay.
Go on.
I think that was a terrible decision for the presidency and for the country.
And not because there were bad people who were independent counsels, but President Reagan's administration, President Bush's administration, President Clinton's administration were really...
Yes.
In their view, all three, by the independent counsel structure.
And what 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 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, and usually was how it worked.
And Justice Scalia wrote that 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 many times.
Regularity of the Department of Justice.
And I think this applied to the independent counsel 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 of fulfilling the executive responsibility to investigate and prosecute?
What would the reaction be if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possibly...
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 by the statute, but that has often been and nothing prevents it from being very broad.
I paraphrased at the end because it was referring to the judges.
That's the concern going forward, is that the system will, when former presidents are subject to prosecution, and the history of Morrison v.
Olson tells us it's not going to stop.
It's going to cycle back and be used against the current president, or the next president, and the next president, and the next president after that.
All that, I want you to try to away that concern.
Why is this not Morrison v.
Olson redux, if we agree with you?
First of all, the independent counsel regime did have many structural features that emphasized 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, I think this goes to a very fundamental point for the court to consider.
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 counsel 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 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 think Your Honor is raising as a possibility.
We have a different system now.
I think there was a consensus throughout Washington that there were flaws in the independent counsel system.
It lapsed.
We now are inside the Justice Department with full accountability resting with the Attorney General.
So the special counsel regulations now don't operate the way that the independent counsel regulations do.
And this court would have something to say about it, I think, if the independent counsel statute were revived.
I'm not sure that anybody is in favor of that.
Right.
No, I was just saying this is kind of the mirror image of that as one way someone could perceive it.
But I take your point about the different structural protections internally.
And like Justice Scalia said, I do not mean to suggest anything of the sort in the present case.
I'm not talking about the present case.
So I'm talking about the future.
Another point, you said, talked about the criminal statutes.
It's very easy to characterize presidential actions as false or misleading under vague statutes.
So President Lyndon Johnson statements about the Vietnam War.
Say something's false.
Turns out to be false that he says about the Vietnam War.
371 prosecution.
After he leaves office?
I think not, but this is an area that merits some serious and nuanced consideration.
Statements that are made by a president to the public.
Are not really coming within the realm of criminal statutes.
They've never been prosecuted.
Oh, really?
Does this guy not know what they went after Trump for?
For the January 6th?
Only statements.
And then I think you get to what I would regard as a hard constitutional question that I 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.
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 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 trammel that.
On the other side of the equation, Congress has a compelling interest in receiving accurate information and at the very least, not information that is intentionally and knowingly false.
Intentionally and knowingly false.
George W. Bush.
Very controversial in the moment.
Yes.
Hugely unpopular, probably why he lost in 76. Yes.
Better decisions in presidential history, I think, by most people.
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 period of 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 presidential responsibilities that Congress cannot regulate.
How about President Obama's drone strikes?
So the Office of Legal Counsel looked at this very carefully.
And they said it's okay to kill people.
Number one, the federal murder statute does apply to the executive branch.
The president wasn't personally carrying out the strike.
Oh, he wasn't personally.
Murder for hire.
And it determined that a public authority 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 established 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.
That's called controlled by the deep state.
That's it.
I want to pick up with that public authority defense.
So I'm looking at the OLC memo that David Barron wrote that you cited in your briefs.
Two hours and 27 minutes.
He describes the public authority defense citing the model penal code.
There are a few different definitions, but I'll just highlight this one.
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.
I think it's narrower, and I recognize it's a defense, not an immunity.
But 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 Blassingame, narrower than Nixon versus Fitzgerald, but that's what it sounds like to me.
Do you agree or disagree?
You know, Jessica, I certainly understand the intuition that when you act outside of your lawful authority, you've kind of gone on 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 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...
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 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 gets to what Justice Gorsuch 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 don't think so, Justice Barrett.
I think that it operates based on objective facts disclosed to.
Counsel.
Counsel then provides the advice, in this case, the Department of Justice.
And 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 as 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 get-out-of-jail-free card.
Yes, I understand that.
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. That said, 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 threat statutes, the jury is the determinant of the facts.
And I have a little bit of difficulty with the idea of trying.
I would prefer a regime in which the court...
altered some of the procedural rules surrounding the president than a total absolute blanket immunity that takes away the possibility of criminal prosecution.
It's never taken away.
It's never taken away.
It's a core violation of the statute in the teeth of attorneys.
I mean, 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 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 think some of them are.
Judge questions that could be resolved in 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 had 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 wished to attach to that kind of a rule, interlocutory appeal, then that would be a lesser safeguard than 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 time seeing how the court could implement that.
And would there be costs 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 a few ancillary rules.
It is different from the radical proposal of my friend.
Oh, I agree.
Let me ask you about state prosecutions.
How long are they going to go?
This is long.
Because if the president has some kind of immunity that's implicit in Article 2, then that immunity would protect him from state prosecutions as well.
Of course.
A lot of the protections 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 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 McCulloch versus Maryland.
the states do not have the authority to burden federal functions and would then kind of move through in renegal 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
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 just described.
Does that include a state defense?
I mean, that's my point.
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 Kavanaugh was referring to that might be the danger of this 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 So 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 have been talking here about some length on the distinction between- Yeah.
- That will have to be determined 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.
The process is impeachment and conviction.
That's the process.
It's not a reason to cast aside a nuanced system that actually looks at what protections are necessary as opposed to what would provide the absolute maximum insulation for former presidents, even if we acknowledge that it's highly prophylactic.
Totally agree, and I wasn't actually...
I'm going to be contrasting the absolute immunity rule.
I was saying that if there was some sort of official private, there are consequences about making immunity.
Okay, and since you bring up the private acts, this is my last question.
So I had asked Mr. Sauer 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.
Oh, that's all they have to do, just alleged private.
The private conduct would be sufficient.
Yes.
The special counsel has expressed some concern for speed and wanting to move forward.
You know, the normal process, what Mr. Sauer asked, would be for us to remand if we decided that there were some official acts of immunity and to let that be sorted out below.
Dan, we'll better decide that.
It is another option for the special counsel to just proceed based on the private conduct and drop the official.
Well, two things on that, Joseph.
First of all, there's really an integrated conspiracy here that had different components, as alleged in the indictment, working with private lawyers to achieve the goals of the fraud.
And as I said before, the fraud, the alleged fraud that followed the exact Hawaii precedent.
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 fraudulent elector scheme is fraudulent, 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.
Thank you.
Thank you.
For their evidentiary 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 insofar as it bears on knowledge and intent.
That's the usual rule with protected speech, for example, under Wisconsin v.
Mitchell.
My friend analogizes this to the speech or debate clause, but we don't think the speech or debate clause has any applicability.
It's a very explicit constitutional protection that says 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.
We have 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 that 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 think I heard you say that even if we decide here something, a rule that's not the rule that you prefer, that is somehow separating out private from official acts and saying that that should apply here,
there's sufficient All right.
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.
Going back to the clear statement.
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, a constitutional question is being avoided so that you're doing that to avoid having to deal with the constitutional question.
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...
Right, and the nature, I guess I'm going at 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, geez, if this statute and those elements apply to the president's conduct in this situation, we'd have to answer.
Is that right?
So the first step in that analysis, I just want to...
Yes, please.
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 v.
United States...
Concluded that similar words, any person, apply to government officials?
All right, well, 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 the ordinary case.
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 tautological to me.
For us...
to hold that presidents cannot be prosecuted under any criminal statute without a clear statement from 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'd have to have a rationale for applying the clear statement rule.
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 v.
Sun Diamond, a case about gratuities that the court is probably familiar with, Justice Scalia wrote an opinion for a unanimous court in which he used a hypothetical about what would happen.
If the president received a sports replica jersey at a typical White House event, would that violate Section 201C?
And the court offered a construction that it had to be for or 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 unless the president is specifically named, which he is not in Section 201.
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 what you take the petitioner's position to be in this.
Because we've had a lot of talk about drawing the lines.
Justice Kavanaugh, Justice Gorsuch suggested that we should be thinking about Blassingame and that within the—first we have private versus official, and then within official now we have something about core acts 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 having to drill down on which official acts do.
And so my question is, why isn't it enough?
For the purposes of this case, given what the petitioner has argued, to just answer the question of whether all official acts get immunity.
That is enough, and if the court answers that question...
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.
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 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 kind...
We should not be trying to, in the abstract, set up those boundaries ahead of time as a function of sort of blanket immunity.
He can depend himself on each case.
Yes, 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 invite, you know, if we see the question presented as broader than that, and we do say let's engage in the core official versus not core and try to figure out the line, is this the right vehicle to hammer out that test?
I mean, I'd understood 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 two.
Of course, they don't want that 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 standard that we.
I don't see any need in this.
All right.
The final sort of set of questions that I have have to do with what I do take as a very legitimate concern about How about Trump?
What a concession.
Exaggeration by the fact that existing administrations have a self-interest in protecting the presidency.
Oh my goodness, she's not actually saying this.
Not if the deep state remains the same.
They'll only do it when it's really justified.
Prosecutors and whatnot comes from an understanding that they will soon be former presidents as well.
I think absolutely.
And I would locate this as a structural argument that's built into the Constitution itself.
Promise me you won't do it to other people.
The executive branch, I think as this court knows, has executive branch interests that it at times asserts in opposition 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 charged.
And I would also say, I think, and ask you to comment on, you know, presidents are concerned about being investigated, evaded, and prosecuted, and it chills to some extent their, you know, ability to do what they want in office.
And that's a concern on one side.
But 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 follow the law because there is really nothing more than, say, political accountability in terms of impeachment?
I mean, we have amicus briefs here from Professor Liederman, for example, who says, 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 procedure.
Oh, come off it.
Oh, what is that?
A five-second ad so we can get this all for free?
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?
Now that I've loaded the question.
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, counsel.
Rebuttal, Mr. Sauer?
I have nothing further, Your Honor.
Thank you, counsel.
Counsel, the case is submitted.
The Honorable Court is now adjourned until Thursday, the 9th of May at 10 o 'clock.
Thursday, the 9th of May.
That's a long time.
Let me close this up.
Do we get any hot?
There's no hot mics.
Okay, well, that was it.
The justices wrapping up oral argument in the presidential immunity case.
I'm going to say the only glimmer of hope is that both lawyers...
Seem to have not presented their positions all that well.
It's very easy to be judgmental.
How the hell did Sauer not mention the Hawaii precedent?
That's one question.
It might have been mentioned, I presume it's mentioned, I have to check the briefs and the memorandums of the argument briefs.
The Hawaii precedent, is this not this one?
Let me, for those who have forgotten, they keep calling it a fraudulent elector.
Fraudulent certificate of electors.
Fraudulent is a legal conclusion.
Imagine all you have to do is allege a crime in order for it to be a crime to survive a motion to dismiss.
Well, you illegally did X, Y, and Z. Well, okay, illegally is the conclusion.
Your indictment has to actually mention acts that are illegal and not just qualify it as illegal.
The fraudulent slate of electors.
See the 1960 Electoral College certificates that the false Trump electors say justify their gambit.
Thank you.
You know it's already being spun.
Their explanation relied heavily on the 1960 election between John F. Kennedy and Richard Nixon, who was the president at the time.
Here we go.
False documents.
They were an alternate slate.
Their explanation relied heavily on the 1960 election between JFK and Richard Nixon.
By December 1960...
It was clear Kennedy had won.
Only Hawaii's results remained in doubt.
Nixon had prevailed by just 140 votes, according to the initial results, which were certified by the governor.
A recount was underway when presidential electors across the nation were required by law to meet and cast their ballots.
Nixon's Hawaii electors met and cast their three votes in an official ceremony.
But nearby Kennedy's three electors nominees gathered and signed their own certificates, delivering them to Washington as though Kennedy had won the state.
The Hawaii episode has become an influential.
Yeah, because it's virtually identical, save except for the election had been decided, so it was without consequence on the general election, maybe.
It was 1960, not 2020.
Maybe, or 2021 by that time.
No, it's 2020 still.
While the Republicans have used the incident to justify their actions, Trump's illegitimate electors for the past year, Politico has newly obtained records that shed light on the 1960 incident.
So the bottom line, and by the way, they approved the alternate slate of electors certificates because they weren't fraudulent.
They were alternate.
They actually approved it.
I think they gave it over to JFK at the time.
How the hell did they not mention that?
They come in, the prosecution or the state comes in and says, well, it says it was fraudulent.
They were fraudulent electors and there's a crime of fraud because we called them fraudulent electors.
Oh my goodness.
I don't know how they didn't mention that.
I don't know how they didn't harp on the fact that the argument coming from the state...
No one's above the law.
No one would ever be shielded from criminal prosecution.
No president would ever be shielded from criminal prosecution if they were impeached and convicted.
None.
So whether or not it's the broadest of immunities, absolute immunity, presumptive presidential acts, no one would be immune from criminal prosecution if the president gets impeached and convicted.
And for those of you, for them saying that, well, all you need is a corrupt Senate.
To refuse to convict, and then you have a lawless president, then you have a lawless government.
And if the idea is the risk is a corrupt Senate that wouldn't punish criminality in the president by convicting on impeachment, so you're fearful of the corruption of the Senate, why wouldn't you be fearful of the corruption of district attorneys and attorney generals who are going to indict in the absence of a conviction on impeachment?
Oh, we're nervous that the president could have impunity.
Lawless, like infinite power if a corrupt Senate decides to acquit him.
Okay, so you're worried about corruption in government that would give undue powers to the president or make him above the law.
Why wouldn't you be worried about corruption in government at the district attorney level, attorney general level, at the states, who would abuse of their newfound powers to criminally harass a former president?
Oh, so there is a risk both ways.
I mean, I will pull out a Thomas Sowell.
There's no right answer here.
There's just trade-offs and an interpretation that's most consistent with the freaking Constitution.
They say, oh, well, immunity is not specifically provided for in the Constitution.
But it's pretty damn right into it.
Article 2, Section 3, he shot from time to time.
I'm not sure if this is the right one.
Presidential immunity from suits of official conduct.
It's pretty much been read into it.
And the whole reason why they pardoned Nixon was because of the risk.
Of prosecution of a former president.
And the idea, well, once he's out of office, what can we do?
You can impeach a former president.
I think they established that during the last impeachment.
You can impeach him because it's not just a question of punishing him and removing him from office during presidency, but making sure that he can never hold office again.
So, what was I going to get at here?
I wanted to bring up something else here.
Hold on.
It was this one?
That's section two.
Here.
This.
I mean, I feel like I'm missing something because they're saying, okay, well, you know, absolute immunity would not shield him from purely private acts.
So all that they would have to say then is it's a purely private act and therefore we get to indict in the absence of a conviction on impeachment.
Vice President, President, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, other high crimes and misdemeanors.
So he'll never be shielded from bribery because it's specifically in the Constitution.
He'll never be shielded or given total criminal immunity.
He'll never be above the law because he would always be able to be impeached and convicted by Congress and the Senate.
Sorry, convicted by the Senate.
And so it's so stupid, their argument, because it says, well, we're worried about corruption in the Senate level that would embolden the president, but we're not worried about corruption at the...
State level that would embolden rogue prosecutors to harass a president that didn't do their bidding.
So they've got to come down with a broad immunity here.
And they touched on it.
Well, okay, look.
Oh, Katanji Brown Jackson or Katanji Jackson Brown?
It's KBJ.
Well, you know, Biden would never abuse of its powers because then people would abuse of it against him.
Well, yeah, no.
Because...
It's not the case that Republicans and Democrats control the same levers of power.
They're not symmetrical power here when it comes to media, when it comes to the weaponized prosecutorial system itself.
It's not the case that you have activist conservative district attorneys across the country going apeshit, trying to take Trump off the ballot, trying to prosecute Trump at every state level.
So as far as it goes in the media, conservatives don't, Republicans don't control the media.
I will argue that Democrats control an exceedingly disproportionate level of force in the media.
When it comes to state attorneys, district attorneys, attorney generals at the state level, progressives and Democrats control exponentially more levers of power that they are abusing in real time.
When it comes to the deep state apparatus, I can agree.
It's sort of a, hey, the deep state will go after Biden when it's time to do so.
Rogue DAs will go after Biden when it's time to do so.
But it's...
Patently naive of Ketanji Brown Jackson to allege, well, they wouldn't do it because it would be used against them.
No.
The administrative powers that be are not conservative controlled.
So it's not a symmetrical type of self-preservation here.
It's a weaponized self-preservation.
They might use it against Biden if he becomes a liability, the same way they turned Cuomo into a liability and took him out of power.
So I'll read through all of the rumble rants of the Super Chats because there's a lot of them.
But no, I feel bad.
I don't like being judgmental.
It seems to me that Sauer could have presented a more compelling argument, could have come up with some zingers that he didn't, and could have mentioned this, oh, they're just presupposing it was fraudulent.
It was lawful back in the 60s.
There were legal opinions about alternate slates of electors.
If you did not...
If you thought there was fraud or chicanery in the slate of electors as presented, there was nothing fraudulent in the alternate slate of electors presented.
It wasn't Jack Smith.
That's a bad example for a name.
It wasn't David Freiheit pretending to be Robert Gouveia, signing Robert Gouveia's name on a certificate saying, I'm Robert Gouveia.
It was David Freiheit signing a slate of electors saying, I am the alternate slate of electors that should be recognized.
And not the one that you're presented with from Robert Covey.
We're both on the same side.
You know what I mean.
Legal, legal.
It wasn't Viva Frye signing Slate of Lecter as legal, legal.
It was Viva Frye signing it in his name.
Here's the alternate slate.
We believe there was chicanery.
And you should acknowledge this alternate slate, not a fraudulent one.
Nobody was saying they had won something they hadn't.
Nobody was saying that they were someone they weren't.
And this was a legal theory that had been put into, implemented back in the 60s.
Lawfully so.
But they call it fraudulent, so it must be fraudulent.
There you have your ham sandwich that you can indict.
So he could have come up with some better zingers, which he didn't.
Dreeben, or Dreeben, was pretty bad as well, in terms of, you know, the hemming and the hawing.
Don't worry about it.
There's checks and balances, and trust us, we won't ever abuse it again.
I mean, that's exactly what Jack Smith argued in his BS memorandum.
This guy doesn't seem to be conveying his take well here.
If the court rules no immunity, the count is gone.
The country is gone, probably.
And investigations to Biden should begin the day after the ruling comes down.
Where was the 16-year-old kid from that Obama killed?
Just go and indict Obama right now.
Oh, but he got a legal opinion from the Department of Justice that said you can kill Americans with no due process, extrajudicially, and it's lawful.
All right.
Oh, good.
No one's above the law.
My ass.
Why they didn't impeach and convict Obama for this?
Yeah, I think it's a sign of government corruption.
That's why you've got to vote him out.
If they rule against Trump, say bye-bye, U.S., deeply troubling.
Ribo, I concur.
Then we got, maybe Justice Roberts already told Sauer that impeachment was already a given.
Jake Seabee.
I don't know.
Viva, what's your opinion on his argument?
Then as a follow-up, how do you think SCOTUS is taking it so far?
They're going to have to issue some form of...
Mildly robust immunity.
My only concern is going to say, alright, there's immunity for official acts, but not for purely private acts, and it's up to a jury to find what's a purely private act?
Or it's only up to the indictors, the prosecutors, to say, oh no, we're alleging it was a private act, so no immunity.
And then you just bypass immunity altogether.
You have no immunity.
They'll say, well, I killed an American citizen out in wherever it was, Iraq or Afghanistan.
Obama says, yeah, it was an official act.
Presumptively official act.
Okay, you're good.
Trump does it.
Oh, you killed a terrorist leader with no declaration?
That was a purely private act.
You did it to bolster your chances for re-election.
You did it.
Let me take a less, a more absurd.
You did it because he didn't like the guy personally.
There was no national, no reason as president to do it.
Just allege every single thing you don't like that a president did.
Allege a crime and allege it was for purely private reasons.
Maybe I'm...
It's possible I'm missing something here.
Viva just had a thought on the stage a coup argument.
He must first fail the coup before we can do anything, at which point he's guilty of treason and should be impeached.
Impeachment must be first.
Obviously!
They just call it insurrection now, even though they tried to impeach him on it and he was acquitted.
Oh, okay, so you get two kicks at the can now?
Now there's no such thing as double jeopardy that applies anymore?
Oh, but they didn't try to impeach him, so now you get to just go to arrest him?
So when you impeach him and he's acquitted, you can still go after him.
And then if you don't impeach him, you can still go after him.
Hey, how about if he's impeached?
Oh, well then impeached and convicted is the only way you can go after him.
Every time they quote the call about the Alabama, they forget to include that he said, do whatever the law requires.
Oh, they know it.
They know it.
No one should be above the law, not even Trump.
And I still think this is a parody account.
It sounds like Trump won't get any, quote, immunity, end quote.
Maybe it's not a parody.
I don't know if you're saying this is a good thing or a bad thing.
Have SCOTUS forgotten that impeachment exists?
Okay, so these are points that you're making, not a banned account, and not affirmations of agreement.
All right, now let's get to the rumble rants and then the tip questions in the vivabarneslaw.locals.com.
We've got a lot here.
Let's do this.
Supreme Court.
Ba-da-bing, ba-da-boom.
Look at that beautiful rumble avatar.
I love that.
Do we go all the way to the bottom here?
Let's go to the bottom.
Oh, no.
I want to keep that there.
Congress determines if it is an official act.
Conviction removes the official seal.
Capo Sooth.
I agree.
Why he couldn't say that so clearly?
You need to see the Ile de la Madeleine municipal court meeting.
ID will be required to enter and leave the island.
I'm doing a video on it this afternoon.
I wanted to do it this morning, but there's just not enough time in the day.
I don't even want to spoil it for people who might not have heard about it because I'm going to do something.
It's going to put it on blast and make it go viral in the legal and proper sense.
Crash Bandit says, are they trying to make it a jailable offense to question the government?
Yes, they are, sir.
Recovery with Carson.
Obama will probably shit his pants if the presidential immunity is diminished.
No, because he's favored.
He's politically favored.
Because he would be able to be charged with murdering an American without due process.
Abdul Rahman al-Awlaki.
Alaki.
But you're right.
Fart Whiff says if executive has no immunity, then judicial has no immunity.
Well, they're going to say judicial has immunity for official functions.
A judge who murders his wife doesn't have judicial immunity, but a judge who wrongly jails someone based on whatever the reasons has immunity.
But then imagine it's a little easier to determine an act carried out by a judge when he's a judge because he's not a judge 24-7, but a president is president 24-7.
Also, There's kind of those provisions of the Constitution that deal specifically with presidential powers, executive powers.
Kind of.
It's almost like no one's above the law.
It's just that different laws apply to the president than apply to me.
They set up the precedent themselves.
They impeached Trump after he left office.
Yeah, but there's an argument for being able to impeach a president after he left office because it does pertain to also preventing him or her from holding office on a going-forward basis.
I can't believe I have not heard anyone mention, does one Congress determine official act or do 51 separate sovereigns?
Good point, Cup of Soup.
They got to it a little bit with like, well, the states can do something that the federal has decided not to or determined it can't.
I greatly appreciate you, Viva, and your education of all of us.
Thank you, says Loanco.
Well, thank you.
I'm trying to make sure that I'm also not understanding, that I'm not missing something here, because they are talking about jurisprudential precedent that would give presidential immunity for official acts, and then they talk about the fringe, the perimeter stuff that might not be official acts for which there might not be immunity.
But I mean, I would have just taken the hard line if it's not just, as a matter of fact, jurisprudence untenable.
If you don't impeach and convict, you have presidential immunity from subsequent prosecution.
Because otherwise, like I keep saying, just allege that it was a private act or a personal act, even if it was presumptively presidential.
I would argue nothing that Trump did as relates to challenging the election was purely personal.
The president's job is to make sure elections are free and fair, period.
Everything he did was even presumptively presidential.
And the idea of bribery, there's specific statutes for bribery that apply to the president.
It's in the Constitution.
And then if they say, well, you know, the pardon was a presidential act, but the bribery wasn't, well, Bill Clinton's got something to worry about from what I understand.
Sean 87, 487, don't be devastated.
Viva, I am devastated.
The idiot arguing for Trump left enough holes like Swiss cheese.
Now, everything Trump did was a personal, not official.
Even if this idiot argument wins, they will get Trump.
I agree with you.
I won't call him an idiot.
But once he conceded, yeah, that's a private act in the indictment.
What the...
I'm not trying to say something you don't believe in so that you avoid the difficult arguments.
No.
There was no private act in there.
Period.
Even if there were, the remedy would have been impeachment and conviction, which they tried and failed at.
Therefore, end of story.
Absolute immunity in the absence of impeachment and conviction.
That's what I would have said.
But I'm sitting here, not before the Supreme Court.
Viva, please look up Samir Khan.
In the car with Anwar al-Awlaki, CIA could not authorize his termination, so they just waited.
I don't know.
GM, good morning, from Anton's Meat and Eat.
Free shipping for your biltong using code VIVA on www.biltongusa.com.
www.antonusa.com.
Biltong is like wet beef jerky.
It's delicious.
I got some in the fridge, actually, Anton.
It's flipping delicious.
A healthy, high-protein snack alternative.
Yours shipped on Tuesday, Viva.
Thank you very much.
I hope I've been eating a lot of it.
I have not put on any weight yet, but I've been eating it.
Instead of crap.
Just like beef.
Like raw meat in my mouth.
Since you're too humble to plug your new book, Viva, let me give you the opportunity.
Hold on.
What is this?
There's a new book?
This is Finboy Slick.
Let me open up a separate window here and see what this looks like.
Politico?
Okay, we've already used this.
Let me see what this is.
Make sure it's...
Oh, yes, sir.
Here we go, people.
I didn't realize I wrote a book.
Hold on.
This is magnificent.
By the way, this is what I look like.
Harlequin Presents.
He reeled in my heart with his rod.
USA.
Dude, this is like, I told you jokingly, like in the chat yesterday in Locals, I've never been jealous of what I could have looked like until I saw this picture.
I don't even, I would not want to be six foot two.
Although I kind of look like that with my shirt off.
Maybe not, maybe my, I can't see my ribs quite as much.
This is a good looking dude.
It's wild.
It's wild.
Although it kind of looks like my body on...
Oh, who was that fighter?
It was a UFC fighter just built like a god.
Like his body was a Greek god.
Okay, I'm going to remove that.
Thank you very much, Finn Westlake.
That's hilarious.
All right, now, well, we're already going to go to vivabarneslaw.locals.com.
View tip.
Let's see what we got here.
John Allen sent a $10 tip.
It says, Viva, thank you for covering this today.
Oh, and thanks for helping my blood pressure rocket.
You and me both, John.
John Allen with another one says, by the way, this is Hunter's crack dealer from over on Watching the Watchers.
Hold on.
This is Hunter's crack dealer from over on Watching the Watchers.
I figured today would be a great day to get some new customers after listening to these geniuses.
Encryptus says, Dweebin argued that there is no immunity for anyone written anywhere.
He is arguing against blanket immunity.
That may hurt Trump today.
But that will help every civil rights or eminent domain or other cases against government officials.
Interesting double-edged sword.
No, the wild thing is it's never going to be a double-edged sword because they're going to argue...
First of all, hold on.
Wasn't it the Westfall Act that formalizes the Westfall Act?
Hold on a second.
Oh no, I'm leaving that open in the back.
I want to do this one here.
How about this one?
What was the Westfall Act?
I forget that.
Westfall Act.
I think it's civil liability.
Immunity.
Federal immunity from liability and suit provided their conduct caused the plaintiffs within the scope of their employment.
That's civil, so not criminal.
Look, there's a double-edged sword, but it's never going to be a double-edged sword when it's only wielded one way.
I mean, look, that's true.
You have the blade on the other side, but it's always only swinging at Republicans, conservatives, politically disfavored.
But thank you, Encryptus.
We got Encryptus with another one.
Says, Dweebin just argued we don't have bad political motives, so it doesn't apply here.
Wow.
Agree.
And then you got Paracleric sent a $1 tip on the lighter side of things.
Viva, what is your current favorite drink?
Martini something?
My production assistant is working on something funny, I think.
It's a good gin with no vermouth, a little bit of salty water from...
Capers and a spoonful of capers.
And an ice cube if the alcohol is 43% or stronger.
I'm a simple man.
That and a tomahawk steak from Easy Meats on Glades.
That's again, Easy Meats on Glades.
Best Brazilian barbecue, not barbecue, meat place you can find anywhere on Earth.
Oh, what do they call it?
It's called the...
Oh, geez.
It's the small pieces of meat.
No, no, I can't.
I'm going to forget this here.
It's a Google Brazilian meat.
It starts with P...
Picanha.
It's picanha.
Picanha.
Oh, the picanha is the best thing on the face of the planet.
And it's actually not...
I think it's cost-effective even compared to Publix crappy AAA or AA or Black Angus red meat.
It's just delicious.
On the lighter side of things?
Okay, now let's go to the comments.
So what we're going to do, by the way, I got a 1.30, and I got to do that video.
It's going to involve some translation, so it's going to take me a little bit of time.
What does everyone think?
It's not...
I'm not optimistic.
I was going to refresh that, and that would have been a big mistake.
I don't want to refresh that.
I want to go to the live chat.
Trump asked about the CrowdStrike server on the call.
He wanted the DNC to blow the Democrats' Russia BS into orbit.
Seth Rich, the man who was murdered, arguably, allegedly, according to Kim.com, for being the source of the information that they claimed was from a Russian hack bullshit, shot dead at four in the morning in a botched robbery in which they took neither his phone, his watch, nor his money.
I am predicting there's going to be some immunity, but it's not going to even get Trump out of the indictment because it's going to leave the window open for purely private acts.
And they're going to say, well, they're all...
The lawyer conceded there were private acts in that indictment.
Why the hell would he...
Like, I don't want to think like deep state to that level of conspiracy, like that lawyer's a mole trying to sabotage Trump.
Why the hell would you concede any purely private act in that indictment?
None of it was purely private.
Period.
Holy hell.
Okay, we're going to do one thing here, people, because I've got to end this, but I want to go over to locals.
I'm going to give everybody the link to locals, and we're going to do a little supporters-only.
Link to locals.
Supporters-only questions.
And I'm going to answer them one after the other, and the rules are there are no rules except don't ask stupid questions.
Not stupid questions.
You know what I mean.
The joke is I don't want to...
Don't ask, like, you know...
What's your social security number?
Don't ask what's your passport number.
Locals, supporters only.
I will answer all these questions for as long as I have before the 1.30 call.
And that's it.
I hope you enjoyed this.
If you're not coming over, stay tuned.
Good vlog coming this afternoon.
My wife has been with the kids now the entire day, so I'll have to try to get in on that.
Got to call my father.
Got to call somebody else.
Got to call at 1.30.
But at least I got out of the 2 o 'clock.
I didn't get out of the 2 o 'clock.
I was going to do a 2 o 'clock podcast elsewhere, and it got rescheduled.
So I just bought myself an extra two hours or at least an hour there.
Booyah!
Let me see here.
Go back to sure and make sure I didn't.
Has SCOTUS forgotten impeachment exists?
Okay, so we got all the super chats.
Let's get the rumble rants.
Make sure I didn't forget any.
Finboy Slick.
Okay, we're good.
So come on over to vivabarneslaw.locals.com for the supporters only after party.
Yesterday we had a great discussion with a supporter.
I published the entire stream yesterday on YouTube.
And it was on Locals.
I have to figure out a way to get the remaining portion on Rumble because I cut it off to go to Locals.
But fantastic story from a very, very cool guy who's driving now from Arizona to Colombia.
And he was in Nicaragua yesterday.
He's going to the Darien Gap.
The Darien Gap.
And then, like, dude.
Dude is intense and has got an interesting story.
So go check it out.
And what I'm going to do now, I'm going to end this on YouTube.
VivaBarnesLaw.Locals.com.
VivaFry.
On Rumble.
Ending on YouTube.
Come on over to VivaBarnesLaw.
Then I'm going to end it on Rumble.
And we're doing the Locals Supporters Only.
Bing bang bong.
Me got questions for the Viva Frye.
We'll see if you can answer them.
Ending on Rumble.
Thank you all.
I'll be live tomorrow, so stay tuned for that.
I don't know what time.
Seems to me I agreed to do something tomorrow morning, and I forget what it is, so I have the rest of the day to remember.
Ending on Rumble.
Come on over.
VivaBarnesLaw.Locals.com.
Prediction, some form of immunity, but it's going to have carve-outs that are not going to resolve the problem at hand.
So, I'm not happy.
Ending on Rumble.
Locals, here I come.
Okay, so we got that.
And now, let me see here.
We're on Locals.
Locals, howdy all.
It doesn't need to be tipped, people.
You have to try Chattanooga Whiskey Cask Strength with a cube of ice.
Amazing stuff.
Let's get you a bottle in Cryptus.
Oh, I...
I very much...
Scotch used to be my favorite drink.
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