- 2 years ago
These are the top moments from Trump v. United States, a case regarding presidential immunity. On Monday, the Supreme Court granted him partial immunity in his federal election interference case.
READ MORE: https://www.forbes.com/sites/alisondurkee/2024/07/01/trump-wins-partial-victory-supreme-court-says-he-has-some-presidential-immunity-from-charges/
00:00 - Clarence Thomas Asks Jack Smith’s Lawyer If There’s No Presidential Immunity— Even For Official Acts
4:10 - Brett Kavanaugh Brings Up Past Presidents With Trump's Lawyer
12:56 - Roberts Asks Special Counsel Lawyer Point Blank Why SCOTUS Shouldn't 'Send Back' Trump Immunity Case
18:16 - Amy Coney Barrett Grills Jack Smith’s Lawyer
30:46 - Samuel Alito explores a hypothetical situation with Special Counsel Jack Smith's attorney
46:25 - Amy Coney Barrett Asks Trump Lawyer Point Blank About Prosecution Of Presidents Ordering Coups
50:00 - Neil Gorsuch grills Jack Smith’s Lawyer
55:22 - John Roberts Presses Trump’s Attorney On Differentiating President's 'Private Acts' From 'Official Acts'
57:14 - Brett Kavanaugh Questions Jack Smith’s Lawyer
1:11:22 - Neil Gorsuch Questions Jack Smith’s Attorney
1:20:51 - Brett Kavanaugh Questions Jack Smith’s Attorney On Parts Of Presidential Authority That 'Congress Cannot Criminalize'
1:24:00 - Ketanji Brown Jackson Grills Jack Smith’s Lawyer
1:36:03 - Amy Coney Barrett Grills Trump’s Lawyer
1:37:30 - Sonia Sotomayor Grills Trump’s Lawyer
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READ MORE: https://www.forbes.com/sites/alisondurkee/2024/07/01/trump-wins-partial-victory-supreme-court-says-he-has-some-presidential-immunity-from-charges/
00:00 - Clarence Thomas Asks Jack Smith’s Lawyer If There’s No Presidential Immunity— Even For Official Acts
4:10 - Brett Kavanaugh Brings Up Past Presidents With Trump's Lawyer
12:56 - Roberts Asks Special Counsel Lawyer Point Blank Why SCOTUS Shouldn't 'Send Back' Trump Immunity Case
18:16 - Amy Coney Barrett Grills Jack Smith’s Lawyer
30:46 - Samuel Alito explores a hypothetical situation with Special Counsel Jack Smith's attorney
46:25 - Amy Coney Barrett Asks Trump Lawyer Point Blank About Prosecution Of Presidents Ordering Coups
50:00 - Neil Gorsuch grills Jack Smith’s Lawyer
55:22 - John Roberts Presses Trump’s Attorney On Differentiating President's 'Private Acts' From 'Official Acts'
57:14 - Brett Kavanaugh Questions Jack Smith’s Lawyer
1:11:22 - Neil Gorsuch Questions Jack Smith’s Attorney
1:20:51 - Brett Kavanaugh Questions Jack Smith’s Attorney On Parts Of Presidential Authority That 'Congress Cannot Criminalize'
1:24:00 - Ketanji Brown Jackson Grills Jack Smith’s Lawyer
1:36:03 - Amy Coney Barrett Grills Trump’s Lawyer
1:37:30 - Sonia Sotomayor Grills Trump’s Lawyer
Fuel your success with Forbes. Gain unlimited access to premium journalism, including breaking news, groundbreaking in-depth reported stories, daily digests and more. Plus, members get a front-row seat at members-only events with leading thinkers and doers, access to premium video that can help you get ahead, an ad-light experience, early access to select products including NFT drops and more:
https://account.forbes.com/membership/?utm_source=youtube&utm_medium=display&utm_campaign=growth_non-sub_paid_subscribe_ytdescript
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More From Forbes: http://forbes.com
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NewsTranscript
00:00:00Mr. Dreeben, does the president have immunity, or are you saying that there's no immunity,
00:00:10presidential immunity, even for official acts?
00:00:13Yes, Justice Thomas, but I think that it's important to put in perspective the position
00:00:19that we are offering the court today.
00:00:23The president, as the head of the Article II branch, can assert, as applied, Article
00:00:29II objections to criminal laws that interfere with an exclusive power possessed by the president
00:00:36or that prevent the president from accomplishing his constitutionally assigned functions.
00:00:43That is the constitutional doctrine that currently governs the separation of powers.
00:00:49What petitioner is asking for is a broad blanket immunity that would protect the president,
00:00:55a former president, from any criminal exposure absent impeachment and conviction, which has
00:01:01never happened in our history.
00:01:04And we submit that is not necessary in order to assure that the president can perform all
00:01:10of the important tasks that the constitution reposes in him.
00:01:15In the not-so-distant past, the president or certain presidents have engaged in various
00:01:25activities, coups or operations like Operation Mongoose when I was a teenager, and yet there
00:01:37were no prosecutions.
00:01:39Why?
00:01:41If what you're saying is right, it would seem that that would have been ripe for criminal
00:01:47prosecution of someone.
00:01:49So Justice Thomas, I think this is a central question.
00:01:53The reason why there have not been prior criminal prosecutions is that there were not crimes.
00:02:00And I want to explain why there are layers of safeguards that assure that former presidents
00:02:06do not have to lightly assume criminal liability for any of their official acts.
00:02:12At the outset, there is a statutory construction principle that is applicable here.
00:02:18It arises when there is a serious constitutional question about applying a criminal statute
00:02:24to the president's acts.
00:02:26It is not, and I'm sure that we will discuss this, that no statute can apply to the president
00:02:31in his official capacity absent a designation of the president in it.
00:02:36But there is a principle that if there is a serious constitutional question, courts
00:02:40will strive to construe the statute so that it does not apply to the president.
00:02:46In addition to that, the president, I think has been mentioned earlier, has access to
00:02:51advice from the attorney general, and it would be a due process problem to prosecute a president
00:02:58who received advice from the attorney general that his actions were lawful, absent the kind
00:03:04of collusion or conspiracy that itself represented a criminal violation, which I don't really
00:03:11see as being a realistic option.
00:03:13And then if I could say one more thing, because you raised the question about potential overseas
00:03:19taking of life.
00:03:20And the Office of Legal Counsel has addressed this quite specifically.
00:03:24There is a background principle of criminal law called the public authority exception
00:03:30to liability, and it is read into federal law unless Congress takes specific action
00:03:37to oust it, which it never has done as far as I am aware.
00:03:41And in a case in which the president sought to engage in overseas activity that would
00:03:47result in the taking of life, OLC did not say the federal murder statute doesn't apply.
00:03:53That would be the thrust of my friend's argument on clear statement.
00:03:57Instead, OLC went through an extensive analysis on why the public authority defense would
00:04:04prevent it from being considered a violation of law to go after a terrorist, for example.
00:04:11Justice Kavanaugh?
00:04:13As you've indicated, this case has huge implications for the presidency, for the future of the
00:04:18presidency, for the future of the country, in my view.
00:04:22You've referred to the department a few times as having supported the position.
00:04:26Who in the department?
00:04:27Is it the president, the attorney general?
00:04:30The Solicitor General of the United States.
00:04:33Part of the way in which the special counsel functions is as a component of the Department
00:04:39of Justice.
00:04:40The regulations envision that we reach out and consult.
00:04:44And on a question of this magnitude that involves equities that are far beyond this prosecution
00:04:50is the questions of the court.
00:04:51So it's the Solicitor General?
00:04:53Yes.
00:04:54Okay.
00:04:55Second, like Justice Gorsuch, I'm not focused on the here and now of this case.
00:05:03I'm very concerned about the future.
00:05:06And I think one of the court's biggest mistakes was Morrison v. Olson.
00:05:11I think that was a terrible decision for the presidency and for the country, and not because
00:05:16there were bad people who were independent counsels, but President Reagan's administration,
00:05:22President Bush's administration, President Clinton's administration were really hampered,
00:05:29in their view, all three, by the independent counsel structure.
00:05:33And what I'm worried about here is that that was kind of, let's relax Article II a bit
00:05:41for the needs of the moment.
00:05:43And I'm worried about the similar kind of situation applying here.
00:05:47That was a prosecutor investigating a president in each of those circumstances, and someone
00:05:53picked from the opposite party the current president, and usually was how it worked.
00:06:01And Justice Scalia wrote that the fairness of a process must be adjudged on the basis
00:06:06of what it permits to happen, not what it produced in a particular case.
00:06:10You've emphasized, many times, regularity of the Department of Justice.
00:06:15And he said, and I think this applied to the independent counsel system, and it could apply
00:06:20if presidents are routinely subject to investigation going forward.
00:06:25One thing is certain, however, it involves investigating and perhaps prosecuting a particular
00:06:29individual.
00:06:30Can one imagine a less equitable manner of fulfilling the executive responsibility to
00:06:34investigate and prosecute?
00:06:36What would the reaction be if, in an area not covered by the statute, the Justice Department
00:06:41posted a public notice inviting applicants to assist in an investigation and possible
00:06:46prosecution of a certain prominent person?
00:06:48Does this not invite what Justice Jackson described as picking the man and then searching
00:06:53the law books or putting investigators to work to pin some offense on him?
00:06:57To be sure, the investigation must relate to the area of criminal offense specified
00:07:03by statute, but that has often been, and nothing prevents it from being very broad.
00:07:10I paraphrased at the end because I was referring to the judges.
00:07:15That's the concern going forward, is that the system will, when former presidents are
00:07:20subject to prosecution in the history of Morrison v. Olson, tells us it's not going to stop.
00:07:27It's going to cycle back and be used against the current president or the next president
00:07:31or and the next president and the next president after that.
00:07:35All that, I want you to try to allay that concern.
00:07:38Why is this not Morrison v. Olson redux if we agree with you?
00:07:43Well, first of all, the independent counsel regime did have many structural features that
00:07:51emphasized independence at the expense of accountability.
00:07:56We don't have that regime now, but even under that regime, Justice Kavanaugh, I think if
00:08:01you look at Lawrence Walsh's report on Iran-Contra, I think this goes to a very fundamental point
00:08:09for the court to consider.
00:08:12Judge Walsh said, I investigated these matters.
00:08:16The proof did not nearly come close to establishing criminal violations.
00:08:20So we've lived from Watergate through the present, through the independent counsel era
00:08:24with all of its flaws, without these prosecutions having gone off on a runaway train.
00:08:29Well, I think President Reagan, President Bush and President Clinton, whether rightly
00:08:34or wrongly, thought opposite, thought contrary to what you just said.
00:08:38I think nobody likes being investigated for a crime, but it didn't result in the kind
00:08:42of vindictive prosecutions that I think your honor is raising as a possibility.
00:08:48We have a different system now.
00:08:49I think there was a consensus throughout Washington that there were flaws in the independent counsel system.
00:08:55It lapsed.
00:08:56We now are inside the Justice Department with full accountability resting with the
00:09:01Attorney General.
00:09:02So the special counsel regulations now don't operate the way that the independent counsel
00:09:07regulations do.
00:09:09And this court would have something to say about it, I think, if the independent counsel
00:09:14statute were revived.
00:09:15I'm not sure that anybody is in favor of that.
00:09:17Right.
00:09:18Now, I was just saying this is kind of the mirror image of that is one way someone could
00:09:22perceive it.
00:09:23But I take your point about the different structural protections internally.
00:09:26And like Justice Scalia said, let me, I do not mean to suggest anything of the sort in
00:09:31the present case.
00:09:32I'm not talking about the present case.
00:09:33So I'm talking about the future.
00:09:36Another point, you said, talked about the criminal statutes, it's very easy to characterize
00:09:42presidential actions as false or misleading under vague statutes.
00:09:47So President Lyndon Johnson's statements about the Vietnam War say something's false,
00:09:57turns out to be false, that he says about the Vietnam War, 371 prosecution after he
00:10:02leaves office?
00:10:03So I think not.
00:10:05But this is an area that I do think that merits some serious and nuanced consideration.
00:10:12Statements that are made by a president to the public are not really coming within the
00:10:17realm of criminal statutes.
00:10:19They've never been prosecuted.
00:10:21I realize that the court can say, well, what if they were?
00:10:25And then I think you get to what I would regard as a hard constitutional question that would
00:10:30probably guide the court away from trying to resolve today, although I do think it's
00:10:35very different from our case and distinguishable in important ways.
00:10:39But you're dealing here with two branches of government that have a paramount interest
00:10:44in the integrity and freedom of their interactions with each other.
00:10:48On the one hand, the president, of course, should be very free to send usually his cabinet
00:10:55officials and subcabinet officials to testify to Congress to provide them with the information
00:11:00needed to enact legislation and to make national policy.
00:11:04And we're very concerned about anything that would trammel that.
00:11:08On the other side of the equation, Congress has a compelling interest in receiving accurate
00:11:14information and at the very least, not information that is intentionally and knowingly false.
00:11:21That would pollute the legislative process.
00:11:23I think it came up before.
00:11:25President Ford's pardon, very controversial in the moment, hugely unpopular, probably
00:11:31why he lost in 76.
00:11:35Now looked upon as one of the better decisions in presidential history, I think by most people.
00:11:43If he's thinking about, well, if I grant this pardon to Richard Nixon, could I be investigated
00:11:49myself for obstruction of justice on the theory that I'm interfering with the investigation
00:11:54of Richard Nixon?
00:11:55So this would fall into that small core area that I mentioned to Justice Kagan and Justice
00:12:00Gorsuch of presidential responsibilities that Congress cannot regulate.
00:12:05How about President Obama's drone strikes?
00:12:08So the Office of Legal Counsel looked at this very carefully and determined that number
00:12:13one, the federal murder statute does apply to the executive branch.
00:12:18The president wasn't personally carrying out the strike, but the aiding and abetting laws
00:12:21are broad and it determined that a public authority exception that's built into statutes
00:12:28and that applied particularly to the murder statute, because it talks about unlawful killing,
00:12:34did not apply to the drone strike.
00:12:36So this is actually the way that the system should function.
00:12:39The Department of Justice takes criminal law very seriously.
00:12:42It runs it through the analysis very carefully with established principles.
00:12:46It documents them, it explains them, and then the president can go forward in accordance
00:12:51with it.
00:12:52And there is no risk of prosecution for that course of activity.
00:12:55Thank you for your answers.
00:12:57The Court of Appeals below, whose decision we're reviewing, said, quote, a former president
00:13:03can be prosecuted for his official acts because the fact of the prosecution means that the
00:13:09former president has allegedly acted in defiance of the laws.
00:13:13Do you agree with that statement?
00:13:15Well, I think it sounds tautologically true, but I want to underscore that the obligation
00:13:24of a president is to take care that the laws are faithfully executed.
00:13:28Well, I think it sounds tautologically true as well, and that, I think, is the clearest
00:13:34statement of the Court's holding, which is why it concerns me.
00:13:38As I read it, it says simply, a former president can be prosecuted because he's being prosecuted.
00:13:43Well, I would not suggest that that's either the proper approach in this case or certainly
00:13:50not the government's approach.
00:13:52A prosecution does, of course, invoke federal criminal law.
00:13:58The allegations have to be presented to a grand jury, which votes upon the indictment.
00:14:03Well, that's what I mean.
00:14:05Shortly after that statement in the Court's opinion, that's what they said.
00:14:09But there's no reason to worry because the prosecutor will act in good faith, and there's
00:14:14no reason to worry because a grand jury will have returned the indictment.
00:14:17Now, you know how easy it is in many cases for a prosecutor to get a grand jury to bring
00:14:23an indictment, and reliance on the good faith of the prosecutor may not be enough in some
00:14:32cases.
00:14:33I'm not suggesting here.
00:14:35So if it's tautological, and those are the only protections that the Court of Appeals
00:14:40below gave, and that is no longer your position, you're not defending that position, why shouldn't
00:14:46we either send it back to the Court of Appeals or issue an opinion making clear that that's
00:14:53not the law?
00:14:54Well, I am defending the Court of Appeals' judgment, and I do think that there are layered
00:14:59safeguards that the Court can take into account that will ameliorate concerns about unduly
00:15:05chilling presidential conduct.
00:15:07That concerns us.
00:15:08We are not endorsing a regime that we think would expose former presidents to criminal
00:15:14prosecution in bad faith, for political animus, without adequate evidence.
00:15:20A politically driven prosecution would violate the Constitution under Waite v. United States.
00:15:27It's not something within the arsenal of prosecutors to do.
00:15:31Prosecutors take an oath.
00:15:32The Attorney General takes an oath.
00:15:34So I don't want to overstate Your Honor's concern with potentially relying solely on
00:15:41good faith.
00:15:42But that's an ingredient.
00:15:44And then the courts stand ready to adjudicate motions based on selective prosecution, political
00:15:50animus.
00:15:51This Court relied on those very protections in the Vance case just two years ago.
00:15:58What concerns me is, as you know, the Court of Appeals did not get into a focused consideration
00:16:05of what acts we're talking about or what documents we're talking about because of its adoption
00:16:10of what you termed, and I agree quite correctly, as a tautological statement.
00:16:15Because the fact of prosecution was enough to take away any official immunity.
00:16:21The fact of prosecution.
00:16:23They had no need to look at what courts normally look at when you're talking about a privilege
00:16:28or immunity question.
00:16:29Well, I think I would take issue, Mr. Chief Justice, with the idea of taking away immunity.
00:16:34There is no immunity that is in the Constitution unless this Court creates it today.
00:16:41There certainly is no textual immunity.
00:16:43We do not submit that that's the end of the story.
00:16:46United States v. Nixon wasn't a textually based case, neither was Nixon v. Fitzgerald.
00:16:52We endorse both of those holdings.
00:16:55But what is important is that no public official has ever had the kind of absolute criminal
00:17:01immunity that my friend speaks of, even with respect to the Speech or Debate Clause.
00:17:06It's very narrow.
00:17:08It's focused on legislative acts.
00:17:10It's not focused on everything that a congressman does.
00:17:13And it responds to a very specific historical circumstance that basically involved the two
00:17:18other branches potentially harassing legislators and preventing them from doing their jobs.
00:17:25That's why it ended up in the Constitution.
00:17:27Something like that ended up in the Constitution for the presidents, and that's because one
00:17:33of the chief concerns of the framers was the risk of presidential misconduct.
00:17:39They labored over this.
00:17:42They adopted an impeachment structure that separated removal from office as a political
00:17:49remedy from criminal prosecution.
00:17:51This departed from the British model.
00:17:54The British model was you get impeached and criminally prosecuted and convicted in the
00:17:59same proceeding.
00:18:00The framers did not want that.
00:18:02They wanted a political remedy in case a president was engaging in conduct that endangered the
00:18:08nation.
00:18:09He could be removed.
00:18:10He can't be prosecuted while he's a sitting president.
00:18:13That's been the longstanding Justice Department position.
00:18:16Mr. Dreeben, you.
00:18:17Justice Barrett.
00:18:18Mr. Dreeben, I want to pick up with that public authority defense.
00:18:22I'm looking at the OLC memo that David Barron wrote that you cited in your briefs.
00:18:28He describes the public authority defense, citing the model penal code.
00:18:31There are a few different definitions, but I'll just highlight this one, justifying
00:18:37conduct which is required or authorized by the law defining the duties or functions of
00:18:43a public officer, the law governing the armed services or lawful conduct of war, or any
00:18:49other provision of law imposing a public duty.
00:18:53That sounds a lot like dividing a line between official and private conduct.
00:18:59I think it's narrower, and I recognize it's a defense, not an immunity.
00:19:02But when you look at the definition of it, are you acting within the scope of authority
00:19:07conferred by law or discharging a duty conferred by law?
00:19:10I think it's narrower than Blasingame, narrower than Nixon versus Fitzgerald, but that's what
00:19:14it sounds like to me.
00:19:16Do you agree or disagree?
00:19:19Mr. Spirid, I certainly understand the intuition that when you act outside of your lawful authority,
00:19:23you've kind of gone on a frolicking detour, you're no longer carrying it out.
00:19:27I don't really think that that quite works for presidential activity.
00:19:31The only way that he could have implemented the orders is by exercising his commander
00:19:36in chief authority over the armed forces or his authority to supervise the executive branch.
00:19:42Those seem like core executive acts to me.
00:19:45There is such a possibility as an unlawful executive act.
00:19:49I'm not sure that I understand your answer.
00:19:52I was thinking, it seemed to me that in your briefs and today, when you referred to the
00:19:57public authority defense, you said that's one of the built-in protections and why immunity
00:20:01is not necessary.
00:20:02Because in some of these instances, when the president takes such actions that the court's
00:20:08been asking you, might this result in criminal prosecution, you say, well, he could raise
00:20:12this public authority defense.
00:20:14So I'm saying, isn't this public authority defense, if raised, doesn't it sound like
00:20:19a defense that says, well, I had, I was authorized by law to discharge this function.
00:20:25And therefore I acted lawfully.
00:20:27Therefore I acted lawfully and not criminally liable.
00:20:31Correct.
00:20:32Does that involve a look into motives?
00:20:34Kind of this is gets to what Justice Gorsuch was asking.
00:20:37Could you say I was acting within the scope of my authority by granting a pardon, removing
00:20:42a cabinet officer, but then the public authority defense might not apply because you had a
00:20:46bad motive in doing so?
00:20:48No, I don't think so, Justice Barrett.
00:20:50I think that it operates based on objective facts disclosed to counsel.
00:20:55Counsel then provides the advice, in this case, the Department of Justice, and it's
00:20:59an objectively valid defense.
00:21:01It's a complete defense to prosecution.
00:21:03So what would be so bad?
00:21:04I mean, one thing that strikes me as different, well, one thing that's obviously different
00:21:08between the public authority defense and immunity is an interlocutory appeal and having
00:21:12it resolved at the outset.
00:21:14What would be so bad about having a question like that resolved at the threshold, having
00:21:19it be an immunity, the same kind of question that could be brought up as a defense later,
00:21:23but have it be brought up at the threshold as an immunity and then an interlocutory appeal
00:21:28would be available and it would be a freedom from standing trial, but not a, not a get
00:21:33out of jail free card.
00:21:34Yes, I understand that.
00:21:36And I think that if the court believed that that was the appropriate way to craft presidential
00:21:42protections, it has the authority to craft procedural rules that implement its article
00:21:49two, uh, concerns.
00:21:51That said, uh, public authority is, we're calling it a defense, but under many statutes,
00:21:57it's actually an exception to liability itself.
00:22:00And what you're really talking about is trying the general issue.
00:22:04And generally in criminal cases, even cases that involve first amendment issues like threats
00:22:10statutes, the jury is the determinant of the facts.
00:22:15And I have a little bit of difficulty with the idea of trying the whole public authority
00:22:20issue separately to the judge and having that go up on interlocutory appeal with review
00:22:26of facts before you could ever get it forward into a criminal case.
00:22:31That said, if I would prefer a regime in which the court, uh, altered some of the procedural
00:22:39rules surrounding the president, then a total absolute blanket immunity that takes away
00:22:46the possibility of criminal prosecution, even if it was a core violation of the statute
00:22:52in the teeth of attorney general advice and has no overriding public.
00:22:56You think it has to be a jury question?
00:22:58And I, I mean, I, let's see, I wasn't necessarily proposing actually treating it as a defense
00:23:03that was done at the outset and then subject to interlocutory appeal.
00:23:07I was proposing what about an immunity doctrine that drew from the public authority defense
00:23:11that the department of justice thinks would otherwise apply.
00:23:15So just, just go with me on that for a minute.
00:23:18Why would it be so bad for it not to be a jury question?
00:23:20I mean, it seems to me that some of these article two concerns would be exacerbated
00:23:24by having it go to a jury rather than a judge.
00:23:26So I, I think some of them are, uh, judge questions that could be resolved in the face
00:23:33of the indictment.
00:23:34If the department of justice ever returned an indictment that said the issuance of this
00:23:39pardon or this series of pardons constituted obstruction of justice, I had a little difficulty
00:23:45hypothesizing it, but emotion could be made on the face of the indictment that says article
00:23:50two precludes Congress from regulating these activities.
00:23:53The indictment needs to be dismissed.
00:23:55And if the court wished to attach to that kind of a rule, interlocutory appeal, then
00:24:03that would be a lesser safeguard than the one that my friend is proposing here.
00:24:09Other kinds of defenses though, really do intersect with the general issue.
00:24:14And for those, I have a much greater time seeing how the court could implement that.
00:24:20And would there be costs in going to trial?
00:24:23Yes.
00:24:24There is no perfect system here.
00:24:26We are trying to design a system that preserves the effective functioning of the presidency
00:24:31and the accountability of a former president under the rule of law.
00:24:35And the perfect system that calibrates all of those values probably has not been devised.
00:24:41I think that the system that we have works pretty well.
00:24:44Maybe it needs some, a few ancillary rules.
00:24:46It is different from the radical proposal of my friend.
00:24:49I agree.
00:24:51Let me ask you about state prosecutions, because if the president has some kind of immunity
00:24:57that's implicit in Article Two, then that immunity would protect him from state prosecutions
00:25:03as well.
00:25:04A lot of the protections that you're talking about are internal protections that the federal
00:25:09government has, protections in the Department of Justice, which obviously are not applicable
00:25:14at the many, many, many, many state and local jurisdictions across the country.
00:25:19What do you have to say to that?
00:25:21So that raises a Supremacy Clause issue, and the court would run a Supremacy Clause analysis
00:25:27that would probably start with basic principles, like McCulloch versus Maryland.
00:25:32The states do not have the authority to burden federal functions, and would then kind of
00:25:37move through in renegal, where the court said that a state murder prosecution of a federal
00:25:44official guarding a Supreme Court justice and who fired a shot was not permissible.
00:25:49If the court thought that you needed a more categorical rule for the states, I think the
00:25:55Supremacy Clause certainly leaves it within the court's prerogative to determine that
00:26:01the president, unlike all other officials, deserves more of a robust federal defense
00:26:05than what I have just described.
00:26:06But it would still be a defense in the states.
00:26:09It wouldn't be...
00:26:10I mean, that's my point.
00:26:13It's one thing to say, well, the president, they're not going to be these prosecutions
00:26:17that are politically motivated, the things that Justice Kavanaugh was referring to that
00:26:21might be the danger of this system.
00:26:23One thing that we have to worry about that might not carry the day, but that's a concern.
00:26:27It's totally different when you take it outside of the Department of Justice and its structures,
00:26:33and then you throw it out elsewhere.
00:26:35The idea across the states, the idea of an immunity, I think has a lot more purchase
00:26:40if you're talking about something that protects the former president from standing trial and
00:26:45the state and local level.
00:26:47So I don't know that you would have to design a system in which the president would have
00:26:51to stand trial at the state and local level, certainly within the court's authority as
00:26:56a matter of Supremacy Clause law, to find an immunity.
00:27:00But we have been talking here about at some length on the distinction between official
00:27:05acts and private acts.
00:27:08That will have to be determined by some sort of a process.
00:27:11Any immunity defense that the court announces can still be met by a state assertion that
00:27:17we're prosecuting private conduct.
00:27:19You're going to have to have some process.
00:27:21I think having some legal process is not a reason to cast aside a nuanced system that
00:27:27actually looks at what protections are necessary, as opposed to what would provide the absolute
00:27:33maximum insulation for former presidents, even if we acknowledge that it's highly prophylactic.
00:27:39Totally agree.
00:27:40I was actually contrasting the absolute immunity rule.
00:27:43I was saying that if there was some sort of official private, there are consequences about
00:27:47making immunity.
00:27:48Okay.
00:27:49And since you bring up the private acts, this is my last question.
00:27:53So I had asked Mr. Sauer about on page 46 and 47 of your brief, you say even if the
00:27:59court were inclined to recognize some immunity for a former president's official acts, it
00:28:04should remain for trial because the indictment alleges substantial private conduct.
00:28:08And you said that the private conduct would be sufficient.
00:28:10Yes.
00:28:11The special counsel has expressed some concern for speed and wanting to move forward.
00:28:16So, you know, the normal process, what Mr. Sauer asked would be for us to remand if we
00:28:21decided that there were some official acts immunity and to let that be sorted out below.
00:28:28It is another option for the special counsel to just proceed based on the private conduct
00:28:32and drop the official conduct.
00:28:34Well, two things on that, Justice Barrett.
00:28:37First of all, there's really an integrated conspiracy here that had different components
00:28:42as alleged in the indictment, working with private lawyers to achieve the goals of the
00:28:47fraud.
00:28:48And as I said before, the petitioner reaching for his official powers to try to make the
00:28:54conspiracies more likely to succeed.
00:28:57We would like to present that as an integrated picture to the jury so that it sees the sequence
00:29:03and the gravity of the conduct and why each step occurred.
00:29:07That said, if the court were to say that the fraudulent elector scheme is private,
00:29:12reaching out to state officials as a candidate is private, trying to exploit the violence
00:29:17after January 6th by calling senators and saying, please delay the certification proceeding
00:29:23is private campaign activity.
00:29:25We still think, contrary to what my friend said, that we could introduce the interactions
00:29:30with the Justice Department, the efforts to pressure the vice president for their evidentiary
00:29:35value as showing the defendant's knowledge and intent.
00:29:40And we would take a jury instruction that would say, you may not impose criminal culpability
00:29:45for the actions that he took.
00:29:48However, you may consider it insofar as it bears on knowledge and intent.
00:29:53That's the usual rule with protected speech, for example, under Wisconsin v. Mitchell.
00:29:58My friend analogizes this to the speech or debate clause, but we don't think the speech
00:30:01or debate clause has any applicability here.
00:30:04It's a very explicit constitutional protection that says senators and representatives shall
00:30:09not be questioned in any other place.
00:30:12So it carries an evidentiary component that's above and beyond whatever official act immunity
00:30:17he is seeking.
00:30:19And the last thing I would say on this is we think that the concerns about the use of
00:30:22evidence of presidential conduct that might otherwise be official and subject to executive
00:30:27privilege is already taken care of by United States v. Nixon.
00:30:31That balances the president's interest in confidentiality against the need of the judicial
00:30:36system for all available facts to get to the truth.
00:30:40And once that has been overcome, we submit that evidence can be used even if culpability
00:30:45can't rest on it.
00:30:46Judge Rubin, do you really, I mean, the presidents have to make a lot of tough decisions about
00:30:51enforcing the law and they have to make decisions about questions that are unsettled and they
00:30:58have to make decisions based on the information that's available.
00:31:02Do you really, did I understand you to say, well, you know, if he makes a mistake, he
00:31:06makes a mistake.
00:31:07He's subject to the criminal laws just like anybody else.
00:31:10You don't think he's in a special, a peculiarly precarious position?
00:31:16He's in a special position for a number of reasons.
00:31:19One is that he has access to legal advice about everything that he does.
00:31:23He's under a constitutional obligation to, he's supposed to be faithful to the laws of
00:31:27the United States and the constitution of the United States.
00:31:30And making a mistake is not what lands you in a criminal prosecution.
00:31:35There's been some talk about the statutes that are issue in this case.
00:31:39I think they are fairly described as Malamancee statutes, engaging in conspiracies to defraud
00:31:47the United States with respect to one of the most important functions, namely the certification
00:31:52of the next president.
00:31:54Well, I don't want to dispute that particular application of that of 371, conspiracy to
00:32:00defraud the United States of the particular facts here.
00:32:03But would you not agree that that is a peculiarly open-ended statutory prohibition in that fraud
00:32:12under that provision, unlike under most other fraud provisions, does not have to do, doesn't
00:32:17require any impairment of a property interest.
00:32:24It's designed to protect the functions of the United States government.
00:32:27And it's difficult to think of a more critical function than the certification of who won
00:32:32the election.
00:32:33Yeah.
00:32:34I'm not, as I said, I'm not discussing the particular facts of this case, but it applies
00:32:38to any fraud that interferes seriously with any government operation, right?
00:32:45So what the government needs to show is an intent to impede, interfere, or defeat a lawful
00:32:51government function by deception, and it has to be done with C-enter.
00:32:55These are not the kinds of activities that I think any of us would think a president
00:33:00needs to engage in in order to fulfill his Article II duties.
00:33:05And particularly in a case like this one, I want to pick up on something that the court
00:33:09said earlier about the distinction between a public official acting to achieve public
00:33:15ends and a public official acting to achieve private ends.
00:33:19As applied to this case, the president has no functions with respect to the certification
00:33:26of the winner of the presidential election.
00:33:29It seems likely that the framers designed the Constitution that way because at the time
00:33:34of the founding, presidents had no two-term limit.
00:33:38They could run again and again and were expected potentially to want to do that.
00:33:44So the potential for self-interest would explain why the states conduct the elections.
00:33:50They send electors to certify who won those elections and to provide votes, and then Congress
00:33:58in an extraordinary joint session certifies the vote.
00:34:01And the president doesn't have an official role in that proceeding.
00:34:06So it's difficult for me to understand how there could be a serious constitutional question
00:34:11about saying you can't use fraud to defeat that function.
00:34:15You can't obstruct it through deception.
00:34:18You can't deprive millions of voters of their right to have their vote counted for the candidate
00:34:24who they chose.
00:34:25Thank you, counsel.
00:34:26Justice Thomas?
00:34:28Justice Alito?
00:34:32Could we just briefly review the layers of protection that you think exists?
00:34:37And I'm going to start with what the D.C. Circuit said.
00:34:42So the first layer of protection is that attorneys general and other Justice Department attorneys
00:34:46can be trusted to act in a professional and ethical manner, right?
00:34:52Yes.
00:34:53How robust is that protection?
00:34:57So the vast majority of attorneys general and Justice Department attorneys, and we both
00:35:02served in the Justice Department for a long time, are honorable people, and they take
00:35:07their professional ethical responsibilities seriously.
00:35:10But there have been exceptions, right?
00:35:12Both among attorneys general and among federal prosecutors.
00:35:17There have been rare exceptions, Justice Alito, but when we're talking about layers of protection,
00:35:22I do think this is the starting point.
00:35:25And if the court has concerns about the robustness of it, I would suggest looking at the charges
00:35:31in this case.
00:35:32Well, I want to talk about this in the abstract, because what is before us, of course, does
00:35:38involve this particular case, which is immensely important.
00:35:41But whatever we decide is going to apply to all future presidents.
00:35:45So as for attorneys general, there have been two who were convicted of criminal offenses
00:35:50while in office.
00:35:51There were others.
00:35:53A Mitchell Palmer's one that comes to mind, who is widely regarded as having abused the
00:35:58power of his office.
00:36:00Would you agree with that?
00:36:01I would, but they are two officials in a long line of attorneys generals who did not, and
00:36:07in departments of justice that are staffed by multiple people who do adhere to their
00:36:13office.
00:36:14And Justice Alito, if I could just, the point that I wanted to make about this case does
00:36:17go to the general proposition.
00:36:19The allegations about the misuse of the Department of Justice to perpetuate election fraud show
00:36:27exactly how the Department of Justice functions in the way that it is supposed to.
00:36:32Petitioner is alleged to have tried to get the Department of Justice to send fraudulent
00:36:37letters to the states to get them to reverse electoral results.
00:36:41I understand that, Mr. Dreeben, but as I said, this case will have effects that go
00:36:49far beyond this particular prosecution.
00:36:52So moving on to the second level of protection that the D.C. Circuit cited, federal grand
00:36:57juries will shield former presidents from unwarranted indictments.
00:37:02How much protection is that?
00:37:04Well, it affords two levels of protection.
00:37:08One is the probable cause finding requires evidence.
00:37:11I think some of the fears about groundless prosecutions aren't supported by evidence
00:37:16and they're not going to get out of the starting game.
00:37:19And there's the old saw about indicting a ham sandwich.
00:37:22Yes, but I think, Justice, you had a lot of experience in the Justice Department.
00:37:28You come across a lot of cases where the U.S. attorney or another federal prosecutor really
00:37:34wanted to indict a case and the grand jury refused to do so.
00:37:38There are such cases.
00:37:40Yes.
00:37:41But I think that the other level of protection.
00:37:44Every once in a while there's an eclipse, too.
00:37:47Well, I think that that's for the most reason is prosecutors have no incentive to bring
00:37:51a case to a grand jury and secure an indictment where they don't have evidence to prove guilt
00:37:55beyond a reasonable doubt.
00:37:56It's self-defeating.
00:37:57All right.
00:37:58Then the third level is that former presidents enjoy all the protections afforded, all criminal
00:38:02defendants.
00:38:03Right.
00:38:04And we've discussed that.
00:38:05And that may be true at the end of the day.
00:38:07But a lot can happen between the time when an indictment is returned and the time when
00:38:15the former president finally gets vindication, perhaps on appeal.
00:38:20Isn't that correct?
00:38:21It is correct, Justice Alito.
00:38:23But I think that we should also consider the history of this country.
00:38:27As members of the court have observed, it's baked into the Constitution that any president
00:38:32knows that they are exposed to potential criminal prosecution.
00:38:36My friend says after impeachment and conviction, we don't read the impeachment judgment clause
00:38:41that way.
00:38:42It's common ground that all former presidents have known that they could be indicted and
00:38:47convicted.
00:38:48And Watergate cemented that understanding.
00:38:52The Watergate smoking gun tape involved President Nixon and H.R. Haldeman talking about and
00:38:59then deciding to use the CIA to give a bogus story to the FBI to shut down a criminal investigation.
00:39:08Mr. Sauer and others have identified events in the past where presidents have engaged
00:39:13in conduct that might have been charged as a federal crime.
00:39:20And you say, well, no, that's not really true.
00:39:23This is page 42 of your brief.
00:39:25So what about President Franklin D. Roosevelt's decision to intern Japanese-Americans during
00:39:31World War II?
00:39:33Couldn't that have been charged under 18 U.S.C. 241?
00:39:37Conspiracy against civil rights today.
00:39:40Yes.
00:39:41Given this court's decision in Trump versus United States, in which the Trump versus Hawaii,
00:39:50excuse me, where the court said Korematsu is overruled and President Roosevelt made
00:39:55that decision with the advice of his attorney general.
00:39:58That's a layer.
00:39:59Is that really true?
00:40:00I thought I thought Attorney General Biddle thought that there was really no threat of
00:40:05sabotage, as did J. Edgar Hoover.
00:40:08So I think that there is a lot of historical controversy, but it underscores that that
00:40:13occurred during wartime.
00:40:15It implicates a potential commander in chief concerns, concerns about the exigencies of
00:40:22national defense that might provide an as-applied Article II challenge at the time.
00:40:29I'm not suggesting today, but the idea that a decision that was made and ultimately endorsed
00:40:34by this court, perhaps wrongly in the Korematsu case, would support criminal prosecution under
00:40:40241, which requires under United States versus Lanier that the right have been made specific
00:40:46so that there is notice to the president.
00:40:48I don't think that would have been satisfied.
00:40:50All right.
00:40:51Well, we could go through other historical examples.
00:40:52I won't do that.
00:40:53Let me just touch briefly on a couple of other things.
00:40:56One is the relevance of advice of counsel, and I wasn't clear what your answer is.
00:41:01So if the president gets advice from the attorney general that something is lawful,
00:41:08is that an absolute defense?
00:41:10Yes.
00:41:11I think that it is under the principle of entrapment by estoppel.
00:41:16This is a due process doctrine that we referred to in our reply brief in Garland versus Cargill
00:41:23this term at page 19, where we cited authority of this court that if a authorized government
00:41:29representative tells you that what you are about to do is lawful, it would be a root
00:41:35violation of due process to prosecute you for that.
00:41:38Won't that give presidents an incentive to be sure to pick an attorney general who will
00:41:46reliably tell the president that it is lawful to do whatever the president wants to do if
00:41:51there's any possibly conceivable argument in favor of it?
00:41:56So I think the constitutional structure protects against that risk.
00:42:00The president nominates the attorney general, and the Senate provides advice and consent.
00:42:06These are the sort of structural checks that have operated for 200 years to prevent the
00:42:11kind of abuses that my friend fears going forward as a result of this once-in-history
00:42:18prosecution.
00:42:20On the question of whether a president has the authority to pardon himself, which came
00:42:26up earlier in the argument, what's the answer to that question?
00:42:29I don't believe the Department of Justice has taken a position.
00:42:32The only authority that I'm aware of is a member of the Office of Legal Counsel wrote
00:42:36on a memorandum that there is no self-pardon authority.
00:42:40As far as I know, the department has not addressed it further, and of course, this court had
00:42:44not addressed it either.
00:42:47When you addressed that question before us, are you speaking in your capacity solely as
00:42:51a member of the special counsel's team, or are you speaking on behalf of the Justice
00:42:58Department, which has special institutional responsibilities?
00:43:04I am speaking on behalf of the Justice Department representing the United States.
00:43:09How don't you think we need to know the answer, at least to the Justice Department's position
00:43:15on that issue in order to decide this case?
00:43:18Because if a president has the authority to pardon himself before leaving office, and
00:43:25the D.C. Circuit is right that there is no immunity from prosecution, won't the predictable
00:43:32result be that presidents on the last couple of days of office are going to pardon themselves
00:43:36from anything that they might have been conceivably charged with committing?
00:43:40I really doubt that, Justice Alito.
00:43:42It sort of presupposes a regime that we have never had except for President Nixon and,
00:43:47as alleged in the indictment here, presidents who are conscious of having engaged in wrongdoing
00:43:53and seeking to shield themselves.
00:43:54I think the political consequences of a president who asserted a right of self-pardon that has
00:44:00never been recognized, that seems to contradict a bedrock principle of our law that no person
00:44:05shall be the judge in their own case, those are adequate deterrents, I think, so that
00:44:11this kind of dystopian regime is not going to evolve.
00:44:15Let me end with just a question about what is required for the functioning of a stable
00:44:24democratic society, which is something that we all want.
00:44:29I'm sure you would agree with me that a stable democratic society requires that a candidate
00:44:36who loses an election, even a close one, even a hotly contested one, leave office peacefully
00:44:44if that candidate is the incumbent.
00:44:47Of course.
00:44:48All right.
00:44:49Now, if an incumbent who loses a very close, hotly contested election knows that a real
00:44:59possibility after leaving office is not that the president is going to be able to go off
00:45:06into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political
00:45:13opponent, will that not lead us into a cycle that destabilizes the functioning of our country
00:45:23as a democracy?
00:45:24And we can look around the world and find countries where we have seen this process,
00:45:29where the loser gets thrown in jail.
00:45:32So I think it's exactly the opposite, Justice Alito.
00:45:35There are lawful mechanisms to contest the results in an election, and outside the record,
00:45:42what I think of public knowledge, a petitioner and his allies filed dozens of electoral challenges.
00:45:51And my understanding is lost all but one that was not outcome determinative in any respect.
00:45:58There were judges that said in order to sustain substantial claims of fraud that would overturn
00:46:06an election result that's certified by a state, you need evidence, you need proof.
00:46:11And none of those things were manifested.
00:46:13So there is an appropriate way to challenge things through the courts with evidence.
00:46:17If you lose, you accept the results.
00:46:19That has been the nation's experience.
00:46:21I think the court is well familiar with that.
00:46:24Thank you.
00:46:25Justice Sotomayor.
00:46:26Justice Barrett.
00:46:27So, Mr. Sauer, you've argued that the impeachment clause suggests or requires impeachment to
00:46:33be a gateway to criminal prosecution, right?
00:46:36Yes, I think that's the plain meaning of that second phrase in the clause.
00:46:39Okay.
00:46:40So there are many other people who are subject to impeachment, including the nine sitting
00:46:45on this bench.
00:46:46And I don't think anyone has ever suggested that impeachment would have to be the gateway
00:46:51to criminal prosecution for any of the many other officers subject to impeachment.
00:46:55So why is the president different when the impeachment clause doesn't say so?
00:46:59Someone very important has made the opposite suggestion as to the president himself, which
00:47:04is Solicitor General Bork, which is reaffirmed in the OLC opinions on this, where Solicitor
00:47:10General Bork, in 1973, as to the issue of the vice president, reviewed the historical
00:47:14materials, and he said the sequence is mandatory only as to the president.
00:47:19That is DOJ's view of the original understanding of the impeachment judgment clause, which
00:47:22is exactly our position.
00:47:24The sequence is mandatory only as to the president.
00:47:27Keep in mind that the criminal prosecution of a president prior to impeachment contradicts,
00:47:32in our view, the plain language of the Constitution, but also hundreds of years of history.
00:47:36And what DOJ admits is the framers' intent.
00:47:39And so we say that that practice, whatever its validity, should not be extended to this
00:47:43novel context where it clashes with the constitutional structure.
00:47:46What if the criminal conduct isn't discovered until after the president is out of office,
00:47:51so there was no opportunity for impeachment?
00:47:53We say the framers assumed the risk that of under enforcement by adopting these very structural
00:47:57checks.
00:47:58As Justice Scalia said in Morrison v. Olson, the separation of powers prevents us from
00:48:03righting every wrong, but it does so that we do not lose liberty.
00:48:06Okay.
00:48:07And the special counsel makes a point that I think is a pretty compelling one.
00:48:11You admit that if the president were successfully impeached, that he could be criminally prosecuted
00:48:16after impeachment, right?
00:48:18Assuming the prosecution was for the same conduct of which he was convicted, not impeached.
00:48:22He must be convicted.
00:48:23That word conviction is right there in the clause.
00:48:26Okay.
00:48:27Granted.
00:48:28But you also say that these criminal statutes, unless they explicitly mentioned the president,
00:48:33don't apply to him.
00:48:34So how can you say that he would be subject to prosecution after impeachment while at
00:48:39the same time saying that he's exempt from these criminal statutes?
00:48:43Well, there are statutes as they concede where president, uh, Congress has purported to two
00:48:48or three.
00:48:49They haven't done a comprehensive review.
00:48:50I think it looks like all they did was text search for president in 18 U.S. code again
00:48:55under Franklin.
00:48:56And that's a very telling indication that the word president is not in the statute.
00:48:58Is it necessarily a magic word requirement, so to speak?
00:49:02But more fundamentally than that, more fundamentally than that, they concede there are statutes
00:49:06that exist.
00:49:07In addition to that, much impeachment could occur as a result of private conduct.
00:49:11So the impeachment judgment clause does do significant work by authorizing the subsequent
00:49:16prosecution of a president there.
00:49:17Because what the framers, if you look at what they're discussing in the things in the constitutional
00:49:22convention is principally concerns about private conduct, which of course we concede are not
00:49:25immune.
00:49:26Okay.
00:49:27So just pick up justice Kagan's example of a president who orders a coup.
00:49:31Let's imagine that he is impeached and convicted for ordering that coup.
00:49:35And let's just accept for the sake of argument, your position that that was official conduct.
00:49:40You're saying that he couldn't be prosecuted for that even after conviction and an impeachment
00:49:44proceeding if there was not a statute that expressly referenced the president and made
00:49:51it criminal for the president.
00:49:53There would have to be a statute that made a clear statement that Congress purported
00:49:57to regulate the president's conduct.
00:49:59Okay.
00:50:00Thank you.
00:50:01Shooting 607 says the president, I've got it in front of me.
00:50:05And so there is, there is that, let me just back up though.
00:50:10Just a second to what was a quick exchange with justice Kavanaugh that I just want to
00:50:14make sure I understand.
00:50:16Did you agree that there are some core functions of the executive that present conduct that
00:50:22Congress cannot criminalize?
00:50:23Yes.
00:50:24We will.
00:50:25Is that a form?
00:50:26I mean, we can call it immunity or you can call it, they can't do it, but what's the
00:50:29difference?
00:50:30We call it an as applied article to challenge that.
00:50:34Okay.
00:50:35Okay.
00:50:36We call it immunity just for shorthand sake.
00:50:38So we, so I think we are kind of narrowing the ground of dispute here.
00:50:42It seems to me there is some, some area you, you concede that an official acts that Congress
00:50:47cannot criminalize.
00:50:49And now we're just talking about the scope.
00:50:51Well, I don't think it's a just, but I think it's a very significant gap between any official
00:50:56act and the small core of exclusive official act.
00:51:00I got that, but I want to explore that.
00:51:02Okay.
00:51:03So for example, let's say a president leads a mostly peaceful protest sit in, in front
00:51:09of Congress, uh, because he objects to a, a piece of legislation that's going through
00:51:17and it in fact delays the proceedings in Congress.
00:51:21Now under 1512 C two, uh, that might be corruptly impeding, uh, a proceed, an official proceeding.
00:51:30Is that core and therefore immunized or whatever word euphemism you want to use for that, not
00:51:36core and therefore prosecutable without a clear statement that applies to the president?
00:51:42It's not, it's not core.
00:51:44The core kinds of activities that the court has acknowledged are the things that I would
00:51:49run through the Youngstown analysis.
00:51:51And it's a pretty small set, but things like the pardon power, the power to recognize foreign
00:51:57nations, the power to veto legislation, the power to make appointments.
00:52:01These are things that the constitution specifically allocates to the president.
00:52:07Once you get out, a president then could be prosecuted for the conduct I described after
00:52:13he leaves office.
00:52:15Probably not, but I want to explain the framework of, of why, uh, I don't think that that would
00:52:20be a prosecution that would be valid.
00:52:24Um, first I think you need to run through all of the sort of normal, uh, categories
00:52:30of analysis.
00:52:32Is there a serious constitutional question that's posed by applying that statute to the
00:52:37president?
00:52:38If so, then you may well default to, it does not apply at least on that.
00:52:42I thought you said it, that was my question and you said it, it fell outside that core,
00:52:48we'll call it immunity for simplicity's sake.
00:52:50Yes.
00:52:51I understand.
00:52:52But there's a, there's a separate category.
00:52:54So why couldn't he be prosecuted for leading a civil rights protest in front of the Capitol
00:52:59that delays a vote on a piece of important legislation?
00:53:03So I think what you need to do is run through all of the very president specific protective
00:53:10layers of analysis.
00:53:11So one of them is whether the statute would be construed not to apply to his conduct,
00:53:16even if it's not a part of that small core of things that Congress can't regulate at
00:53:22all.
00:53:23If it operates to prevent the president from fulfilling his article, he could have given
00:53:27speeches against it.
00:53:28He did.
00:53:29Yes.
00:53:30But he left, he did something more and it, and it corruptly impeded and sought to influence
00:53:34an official proceeding.
00:53:35Well, so I, I don't know, we're, we're starting with the layers I think of protection and
00:53:41we're now down through whether the statute would be construed to apply to him.
00:53:46Then there'd be a question of whether it does.
00:53:48I will assume it.
00:53:49Uh, then, then there's a question of whether he has the state of mind necessarily corrupt.
00:53:56Nobody knows what corrupt intent means.
00:53:58We've been around that tree.
00:53:59We will probably find out.
00:54:01And maybe it means that he knows that he was doing wrong is what the government told us,
00:54:05right?
00:54:06He knows he's doing wrong.
00:54:07I don't, I shouldn't be up there, uh, blocking a congressman from, well, let me get to the
00:54:11next layer then, which is that the president does have access to the attorney general to
00:54:16provide legal advice and regularly gets legal advice from the attorney general on the lawful
00:54:23scope of the president's activities.
00:54:26We can go down two tracks here.
00:54:27One is that the attorney general advises him that as an incident of his article two authority
00:54:33and in carrying out, uh, the functions of the presidency, he can lawfully participate
00:54:38in that protest.
00:54:40It's kind of the first amendment analog to, uh, the president's official powers, which
00:54:46the court is exploring in other cases.
00:54:48Alternatively, the attorney general could advise him, I'm sorry, Mr. President, there's
00:54:52nothing in the language of this statute that carves you out.
00:54:55I don't see a serious constitutional question in it because you don't have to do that.
00:54:59And I would advise you not to violate the criminal law.
00:55:03No.
00:55:04No.
00:55:05If he gets a negative opinion from the attorney general, he still couldn't be prosecuted?
00:55:08I would assume that most presidents are not going to take in a, well, but if he gets one
00:55:12and does it anyway, then he could be prosecuted.
00:55:13Well, so then if we are down at that level, I think what we are really asking is whether
00:55:17the president is subject to the criminal law.
00:55:20And our answer is yes, he is subject to the criminal law.
00:55:23Uh, thank you counsel.
00:55:25And what is the consequence in terms of going forward with your acknowledgement that those
00:55:30are private acts as opposed to official acts?
00:55:33If you look at the, uh, if you look at the, uh, uh, the indictment here, there's a bunch
00:55:37of acts that we think are just clearly official.
00:55:39There may be allegations that mostly relate to what the government has described here
00:55:42as private aim or private end and the court should remand or, or address itself, but remand
00:55:49for a Brewster like determination, which is what's official and what's private.
00:55:53The official stuff has to be expunged completely from the indictment before the case can go
00:55:56forward.
00:55:57So it has to be a determination, at least on remand of what's official to stage a determination
00:56:02of what's official and what's private.
00:56:03Well, if you expunge the official part from the indictment, how do you, I mean, that's
00:56:07like a one legged stool, right?
00:56:10I mean, giving somebody money isn't bribery unless you get something in exchange.
00:56:14And if what you get in exchange is to become the ambassador to a particular country, um,
00:56:19that is an official, the appointment that's within the president's prerogatives.
00:56:24The unofficial part is I'm going to get a million dollars for it.
00:56:27So if you say you have to expunge, uh, the official part, how does that go forward?
00:56:32Uh, this particular indictment where we say virtually all the overt conduct is official,
00:56:36we don't believe it would be able to go forward.
00:56:38I mean, there could be a case where it would, but if you look at even the government's brief
00:56:42in this case divides up the indictment into things that other than the, uh, electors allegations
00:56:49don't really are, they haven't disputed that they are official acts.
00:56:54But what they do is say, well, we tie it all together by characterizing it as done.
00:56:57And these are the allegations that, uh, the court just referred to by an improper private
00:57:02aim or private end.
00:57:03Again, that's their words and that just runs loggerheads, you know, dead set against this
00:57:07court's case.
00:57:08So I was saying you don't look at what immunity determinations, the, the, the motive, improper
00:57:13motivation or purpose.
00:57:14Thank you.
00:57:15Justice Kagan.
00:57:16Mr. Dreeben, I want to go through, um, your framework and make sure I understand it.
00:57:22So first on the small category of things that you say have absolute protection, that they
00:57:27are core executive functions.
00:57:30Yes.
00:57:31Um, what are those small categories?
00:57:33Uh, pardon, power, pardon, veto, veto, foreign recognition, uh, appointments.
00:57:41Congress cannot say you can't appoint a federal judge who hasn't received a, you know, a certain
00:57:45diploma.
00:57:46It hasn't achieved a certain age.
00:57:48Um, there are a few other powers.
00:57:51First commander in chief.
00:57:52Commander in chief is, is on the list, but I want to add to my answer on that, that Congress
00:57:59has substantial authority in the national security realm.
00:58:03Congress declares war, it raises armies, it has power over the purse.
00:58:07That's more of a-
00:58:08So that may be viewed as not really in that court set of functions, which nobody has any
00:58:12power but the president over.
00:58:14Yes.
00:58:15I think that there may be some aspects like directing troops on the field in which the
00:58:19president's power is completely unreviewable.
00:58:21Okay.
00:58:22Now in, in, um, in the next category where you were, we've left the core set behind,
00:58:29but we're still in the world of official actions and that's where you say there are various
00:58:36statutory construction rules that might come into play.
00:58:39Correct.
00:58:40But you have characterized those as something different from just saying, Oh look, the statute
00:58:44doesn't say the president, therefore it doesn't apply to the president.
00:58:48That's right.
00:58:49So I wanted to give you an opportunity to say, you know, how that would look, how that
00:58:53analysis would look in a given case.
00:58:56And, and in the course of responding to that, you know, I'm sort of thinking of something
00:59:00like the OLC opinion, which says bribery, the president can be, um, tried and convicted
00:59:08of bribery, even in the part of the bribery statutes that do not say the president.
00:59:14Um, why is that true?
00:59:17That is true because there is no serious constitutional question that the president
00:59:20needs to be engaged in bribery in order to carry out his constitutional functions.
00:59:25And the office of legal counsel pointed out that bribery is enumerated in the impeachment
00:59:29clause.
00:59:31So it falls outside of anything that could be viewed as inherent in the need of article
00:59:36two to function.
00:59:37Do you think the premise of that OLC opinion was that the bribery was simply not official?
00:59:42No.
00:59:43I think there is the premise that the bribery was official and, um, and still the president
00:59:48could be prosecuted for it.
00:59:50I think that that bribery is, is the kind of hybrid that illustrates the abuse of public
00:59:55office for private gain that we think is paradigmatic of the kinds of things that should be, uh,
01:00:02not held to be immune in a bribery case.
01:00:05The public official cannot extract the bribe without the official power to offer as, uh,
01:00:11the quid or the pro, uh, I guess the quo actually.
01:00:15Um, uh, so it really is a crime that can only be committed by public officials who misuse
01:00:22their power.
01:00:23And it was one of the things that was most mistrusted.
01:00:26Many of the acts that are charged in this indictment or that would violate federal criminal
01:00:30law similarly involve the misuse of official power for private gain.
01:00:36So if you were to say like what the line is in this category, like when it is that
01:00:41the statute should be understood as precluding presidential prosecution and when it is that
01:00:46the statute should be understood as allowing it, what general principles should guide?
01:00:52So the, the, the general principles I think kind of emerge from looking at what the office
01:00:56of legal counsel has done.
01:00:58So for example, with respect to a federal statute that prohibited appointments to courts
01:01:04of people within certain degrees of consanguinity, uh, the office of legal counsel said this
01:01:10infringes on a very important appointment power of the president, the power to appoint
01:01:15federal judges.
01:01:17It cannot be presumed that Congress intended to do that because it would raise a very serious
01:01:21constitutional question.
01:01:23The president is out.
01:01:25Then there are categories of statutes where the president is in, like for example, the
01:01:29grassroots lobbying statute that an office of legal counsel wrote an opinion about that.
01:01:34And it said for the president or other public officials to go out into the world and to
01:01:39promote their programs.
01:01:41That can't be what Congress intended to prohibit.
01:01:43What it did intend to prohibit is using federal funds to Jenna gin up an artificial grassroots
01:01:49campaign that gave the appearance of emerging from the people, but it was really top down.
01:01:55And the office of legal counsel said the president and officials who carry out the president's
01:01:59mandates are subject to that statute.
01:02:03So that's a more nuanced one.
01:02:04And then the third example that I will give you is, uh, the statute that would permit
01:02:10prosecution for contempt of Congress.
01:02:12The office of legal counsel concluded that a good faith assertion of executive privilege
01:02:16as a reason for not providing information to Congress would preclude prosecution because
01:02:23Congress cannot be deemed to have altered the separation of powers in such a manner.
01:02:28I think, uh, OLC probably would have gone on to say if Congress tried to do it, it would
01:02:33be deemed unconstitutional.
01:02:34But again, this was a statute that did not specifically name the president.
01:02:39There are only two that do that.
01:02:42So the entire corpus of federal criminal law, including bribery offenses, sedition, murder
01:02:48would all be off limits if it were taken to the, uh, to the, to the extent that some of
01:02:54the questions have suggested.
01:02:56For the general principle, does it raise a serious constitutional question?
01:03:01And if so, to what extent can it be carved out individually?
01:03:05And there may be some instances where the statutes here could be carved out and a particular
01:03:11act could be found to be protected.
01:03:14Or does the statute across the board in such a wide range of applications, somewhat analogous
01:03:20to overbreadth analysis, uh, infringe on the president's power so that we're going
01:03:25to say that, that the president is just out.
01:03:27Now that set of issues, they seem important and may occasionally be difficult.
01:03:32Um, they also seem not really before us in the way Justice Jackson suggested earlier.
01:03:39What do you suggest?
01:03:40I mean, do you think they are before us?
01:03:41We should just clear it up.
01:03:42Here it is.
01:03:43We have a case.
01:03:44Um, what, what else could we do?
01:03:46How should we deal with this?
01:03:47Uh, that there are these lingering issues.
01:03:50Yes.
01:03:51They go beyond the question of whether there's the kind of absolute immunity that, um, the
01:03:56former president is invoking.
01:03:57So I think the court has discretion to reach that issue, even though Justice Jackson is
01:04:03totally right.
01:04:04It was not raised in the district court and it was not raised in the court of appeals.
01:04:08And the, the analysis that I would use to get there is a fusion of a couple of principles.
01:04:14One is the court has often resolved threshold questions that are a prerequisite to an intelligent
01:04:20resolution of the question presented.
01:04:22So in a case like United States versus Grubbs, for example, the court reached out to decide
01:04:27what, whether anticipatory warrants are valid under the fourth amendment before turning
01:04:32to the question, whether the triggering condition for an anticipatory warrant had to be in the
01:04:36warrant.
01:04:37So that's one principle.
01:04:39And then a precedent that bears some analogy to this is, uh, Vermont natural resources
01:04:46agency versus United States, XRL Stevens, it was a key TAM case.
01:04:52And the first question was whether a state agency was a person within the meaning of
01:04:57the false claims act.
01:04:58And the second question was whether if the state agency was 11th amendment immunity kicked
01:05:05in.
01:05:06So the court wrote an analysis of why it could reach both questions.
01:05:11The reaching the person question didn't expand the court's jurisdiction.
01:05:15And it made sense as a matter of constitutional avoidance to do that.
01:05:19There are some considerations that cut against this.
01:05:21And I want to be clear that for overall government equities, we are not wild about, uh, parties
01:05:27who raise a, uh, an immunity case that can be, uh, presented to a court on an interlocutory
01:05:33appeal and then smuggling in other issues.
01:05:36So we would want to guide the court not to have an expansive approach to that issue.
01:05:42But the final thing that I would say about this is part of our submission to this court
01:05:47is that the article one branch and the article two branches are aligned in believing that
01:05:53this prosecution is an appropriate way to enforce the law Congress by making the law,
01:05:59the current executive by deciding to bring it.
01:06:02And since a building block of that, uh, submission is that Congress actually did apply these
01:06:07criminal laws to official conduct, the court may wish to exercise its discretion to resolve
01:06:12that issue.
01:06:13Okay.
01:06:14I have one last set of questions, which has to do with the official on unofficial line.
01:06:19And you heard, um, Mr. Sowers responses to both justice Barrett's questions and my questions
01:06:25about what he thinks counts as official here and what he thinks counts as unofficial here.
01:06:31And I'm just wondering what you took from his responses and also how you would characterize
01:06:37what is official and what is not official in this indictment.
01:06:42So, um, I think petitioner conceded that there are, uh, acts that are not official that are
01:06:48alleged in the indictment.
01:06:49And we agree with him on all of that.
01:06:51I think I disagree with him on everything else that he said about what is official and
01:06:56what is not organizing fraudulent slates of electors, creating false documentation
01:07:03that says, uh, I'm an elector.
01:07:05I was appointed properly.
01:07:07I'm going to send a vote off to Congress that reflects that petitioner one rather than the
01:07:12candidate that actually got the most votes and who was ascertained by the governor and
01:07:17whose electors were appointed to cast votes.
01:07:21That is not a official conduct that is campaign conduct.
01:07:25And I think that the DC circuit in the blasting game case did draw an appropriate distinction.
01:07:31A first term president who's running for reelection can act in the capacity as office seeker or
01:07:37office holder.
01:07:39And when working with private lawyers and a private public relations, uh, advisor to
01:07:47gin up fraudulent slates of electors, that is not any part of a president's job.
01:07:52So there's, I'm sorry.
01:07:53There's an allegation, um, in the indictment that has to do with the removal of a justice
01:07:58department official would, would, is that core protected conduct?
01:08:02We don't think that that's core protected conduct.
01:08:04I don't think that, that I would characterize that episode quite that way.
01:08:08We do agree that the department of justice allegations were a use of the president's
01:08:13official power in many ways.
01:08:16We think that aggravates the nature of this offense seeking as a candidate to oust the
01:08:23lawful winner of the election and have one self certified with private actors is a private
01:08:30scheme to achieve a private end and many of the co-conspirators alleged in the indictment
01:08:34are private.
01:08:36But for an incumbent president to then use his presidential powers to try to enhance
01:08:41the likelihood that it succeeds makes the crime in our view worse.
01:08:46So in the department of justice episode, uh, it's cars very late in the election cycle
01:08:51after many other schemes had failed.
01:08:54Um, and at that point the, the petitioner is alleged to have tried to pressure the department
01:09:02of justice to send false letters to the states claiming that there were serious election
01:09:07irregularities and that they should investigate who they certified as a president.
01:09:11None of this was true.
01:09:13The department of justice officials all said, this is not true.
01:09:16We are not going to do that.
01:09:17And at that point, petitioner is alleged to have threatened to remove the department of
01:09:22justice officials who were standing by their oath and replace them with another person
01:09:28who would carry it out.
01:09:29We're not seeking to impose criminal liability on the president for exercising or talking
01:09:35about exercising the appointment and removal power.
01:09:38No.
01:09:39What we're seeking to impose criminal liability for is a conspiracy to use fraud to subvert
01:09:44the election.
01:09:46One means of which was to try to get the justice department to be complicit in this.
01:09:50The case would have been no different if petitioner were successful and he had actually exercised
01:09:56the appointment and removal power and it had gone through and those fraudulent letters
01:10:00were sent.
01:10:01It would have made the scheme more dangerous, but it would not have changed the crime.
01:10:04And how do we think about things like conversations with the vice president?
01:10:08In other words, things that if you say it that way, it's clear that they would fall
01:10:11under executive privilege.
01:10:13But how does that relate to the question that we're asking here?
01:10:18So this is one of the most difficult questions for the department of justice.
01:10:22And I want to explain why that is.
01:10:25If we are operating under a Fitzgerald versus Nixon lens and looking at this the way that
01:10:31we look at things when there is a private lawsuit filed against the president, we take
01:10:37a very broad view of what the outer perimeter of official presidential action is in order
01:10:43to be as protective of the president against private lawsuits that, as this court explained,
01:10:49in Nixon versus Fitzgerald can be very deleterious to the president's conduct of business.
01:10:54So if we were putting this under a Fitzgerald lens, we would then have to answer the question,
01:11:00was he acting in the capacity as office seeker or was he acting in the capacity as office
01:11:07holder?
01:11:08And if you run through the indictment, you can find support for those two characterizations.
01:11:14And the Department of Justice has not yet had to come to grips with how we would analyze
01:11:19that set of interactions.
01:11:22Thank you.
01:11:23Justice Gorsuch.
01:11:24If you did, though, I just wanted to confirm, I thought I heard you thought that the blazing
01:11:28game framework was the appropriate one.
01:11:32Largely yes.
01:11:33Justice Gorsuch, we agree with the idea of the distinction between office holder and
01:11:42office seeker.
01:11:43We also agree that if it's objectively reasonable to view the activities as those of office
01:11:51holder, then the Fitzgerald immunity kicks in.
01:11:55I think we would look more at the content of the actual interaction in order to make
01:12:02that determination than blazing game suggested, at least on the facts of that case, might
01:12:07be appropriate.
01:12:08Can you give me an example of what you have in mind?
01:12:10I'm just trying to understand what nuance you're suggesting.
01:12:14So blazing game adopted a generally very favorable pro-government framework that we endorse in
01:12:21private locations.
01:12:22I would have thought.
01:12:23Yeah.
01:12:24OK.
01:12:25Not here, because we don't think that Fitzgerald applies in the criminal context.
01:12:27No, I understand that.
01:12:28But putting that aside, the distinction between official act and private office seeker, their
01:12:34test is, you think, good enough for government work?
01:12:41On this one, the department hasn't taken a next step since the blazing game decision.
01:12:47But let me offer a few thoughts that Justice Gorsuch, I think, might clarify it.
01:12:51The blazing game decision focused on objective contextual indications to try to see whether
01:12:56the president was acting as a campaigner as opposed to an office holder.
01:13:03I think that that decision can also be made by looking at what the president actually
01:13:10said.
01:13:11And let me illustrate that with an allegation that I think my friend talked briefly.
01:13:17In one of the interactions between petitioner and a state official, petitioner is alleged
01:13:22to have said, all I need you to do is to find me 11,000 votes and change.
01:13:28I think if you look at that content, it's pretty clear that petitioner is acting in
01:13:33the capacity as office seeker, not as president.
01:13:37And we would look at that content.
01:13:38OK.
01:13:39But the test, I'm just focused on the legal test.
01:13:42I'm not hearing any objections to it.
01:13:44Other than I think that the D.C. Circuit placed more content consideration off limits than
01:13:52I would.
01:13:53OK.
01:13:54All right.
01:13:55And then I wanted to understand on the core immunity or whatever word we use, that it
01:13:59seems to me that we're narrowing the ground of dispute here considerably.
01:14:04Do we look at motives, the president's motives for his actions?
01:14:09I mean, for example, he has lots of war powers, as we've discussed, but he might use them
01:14:16in order to enhance his election, his personal interests.
01:14:20Is that a relevant consideration when we're looking at core powers?
01:14:23So I am thinking of this more as looking at the objective of the activity, as opposed
01:14:30to the kind of subjective motive in the sense that your honor is talking about.
01:14:35I think that there is a lot of concern about saying an electoral motive to be reelected
01:14:40as such.
01:14:41Every first term president, everything he does can be seen through the prism, by critics
01:14:48at least, of his personal interest in reelection.
01:14:52Yes.
01:14:53And so you wouldn't want that.
01:14:54I think you would say personal motivations off limits with respect to the core powers.
01:15:01Probably.
01:15:02Well, with respect to the core powers, we think those are just things that can't be
01:15:05regulated at all, like the pardon power and veto.
01:15:08Right.
01:15:09Regardless of motive.
01:15:10Correct.
01:15:11Regardless of motive.
01:15:12That's right.
01:15:13That's right.
01:15:14All right.
01:15:15So then we're in the non-core powers where we're fighting over.
01:15:16What role do motives play there?
01:15:19I mean, one could remove an appointee that, well, first of all, is, maybe ask this first,
01:15:26is removing an appointee, a presidential appointee, a core power or a non-core power?
01:15:33So here I might need to differentiate between the principal officers that this court in
01:15:39cases like Myers and Sela Law has regarded as having a constitutional status of being
01:15:47removable at will from inferior officers where Congress does have some regulatory
01:15:52law to impose restrictions on removal.
01:15:56Sure.
01:15:57Let's put that aside.
01:15:58Yeah.
01:15:59I understand that.
01:16:00Putting that aside.
01:16:01Yes.
01:16:02Appointing a principal officer is a core power.
01:16:03I am not prepared to say that there is no potential criminal regulation to say you can't
01:16:09do it for corrupt purposes to enrich yourself, for example.
01:16:14Bribery.
01:16:15All right.
01:16:17But that's what I was wondering.
01:16:18Do motives come into the core power analysis or not?
01:16:21And now I'm hearing, I thought I heard no, and now I'm hearing maybe.
01:16:25I think maybe might be a little bit more appropriate because it's not involved in this case.
01:16:30The department has not had to take a position on exactly how these core powers would be
01:16:37resolved under an as applied constitutional analysis.
01:16:41None is involved in this case.
01:16:43And I guess I'm wondering, and I'm not concerned about this case so much as future ones too,
01:16:48but these non-core powers and maybe core powers where a president is acting with at least
01:16:55in part a personal interest in getting reelected.
01:17:00Everything he does.
01:17:01Yeah.
01:17:02He wants to get reelected.
01:17:03And if you're allowing in motive to color that, I'm wondering how much is left of either
01:17:12the core or non-core powers.
01:17:14So I would be fine with carving that out and deeming that to be something that's intrinsic
01:17:19in our electoral system.
01:17:21We're not talking about applying criminal law to somebody who makes an announcement
01:17:26that this program will be good for the United States.
01:17:29And somebody could come along and say, well, you really did it to get reelected.
01:17:33Leaving aside whether any of that violates a criminal law.
01:17:36I know that the next question is assume that it does.
01:17:39I'm doubtful that it in fact does, because I don't think criminal laws generally operate
01:17:44on motives as opposed to objectives and purposes.
01:17:47But that's-
01:17:48Well, all right.
01:17:49Intentions.
01:17:50I mean, you can frame a motive as an intention and intentions as a motive, as you well know,
01:17:54every day of the week.
01:17:55So let's put that aside.
01:17:56I understand.
01:17:57But putting that aside, that really, to me, falls in a very different category.
01:18:03And it is also-
01:18:04So there's some motives or intents that are cognizable and others that aren't.
01:18:10I mean, it's awkward, right?
01:18:12When we look back at the injunction back to Marbury in the early cases, you can't enjoin
01:18:19a president.
01:18:20Yeah.
01:18:21A sitting president.
01:18:22Also meant you couldn't hold him in contempt, right?
01:18:23A sitting president.
01:18:24For sure.
01:18:25For sure.
01:18:26Jessica, can I try one more time to clarify?
01:18:27Well, let me just spin this out just a second, right?
01:18:30And it didn't matter what the president's motives were.
01:18:32We're not going to look behind it.
01:18:35Right.
01:18:36And same thing in Nixon.
01:18:37We said, gosh, Nixon versus Fitzgerald.
01:18:39That's something courts shouldn't get engaged in because presidents have all manner of motives.
01:18:45And again, I'm not concerned about this case, but I am concerned about future uses of the
01:18:51criminal law to target political opponents based on accusations about their motives.
01:18:57Whether it's re-election or who knows what corrupt means in 1512, right?
01:19:03We don't know what that means.
01:19:05Maybe we'll find out sometime soon.
01:19:08But the dangerousness of accusing your political opponent of having bad motives.
01:19:14And if that's enough to overcome your core powers or any other limits, reactions, thoughts.
01:19:22Yeah.
01:19:23So I think that you're raising a very difficult question.
01:19:26That's the idea, right?
01:19:27I mean, that is the idea.
01:19:28Testing, testing the limits of both sides arguments.
01:19:31And I'm going to say something that I don't normally say, which is that's really not involved
01:19:35in this case.
01:19:38We don't have bad political motive in that sense.
01:19:41I understand that.
01:19:42I appreciate that.
01:19:43But you also appreciate that we're writing a rule for the ages.
01:19:47Yes.
01:19:48And I think I would start by looking at the statutes and then seeing what restrictions
01:19:52they do place on the president's conduct.
01:19:56For example, the statute that prohibits fraud to defeat the lawful functions of the United
01:20:01States.
01:20:02The statute defines what the purpose is that the defendant has to have in mind.
01:20:07It has to be to defeat something that the United States is doing.
01:20:11And it has to be by deception.
01:20:13I don't think that that gets us into the realm of motive hunting in the area where we are
01:20:19as concerned, I think, as the court would be about doing something that would undermine
01:20:24the presidency and the executive branch.
01:20:27And 1512C2, we may have different views on the clarity and the scope of that statute.
01:20:33I think if the court does interpret corruptly as involving a consciousness of wrongdoing
01:20:38and elevates that to consciousness of illegality, then we're in a different realm.
01:20:43Wanting to get reelected is not an illegal motive.
01:20:47And you don't have to worry about prosecuting presidents for that.
01:20:50Thank you, Mr. Dreeb.
01:20:51Just to unpack it a little more, do you agree that there are some aspects of Article II
01:20:59presidential power that are exclusive and that Congress cannot regulate and therefore
01:21:03cannot criminalize?
01:21:05Absolutely.
01:21:06Okay.
01:21:07For other official acts that the president may take that are not within that exclusive
01:21:11power, assume for the sake of argument this question that there's not blanket immunity
01:21:18for those official acts, but that to preserve the separation of powers, to provide fair
01:21:25notice, to make sure Congress has thought about this, that Congress has to speak clearly
01:21:31to criminalize official acts of the president by a specific reference.
01:21:37That seems to be what the OLC opinions suggest.
01:21:40I know you have a little bit of a disagreement with that and what this court's cases also
01:21:44suggest.
01:21:45Justice Kavanaugh, I'd like to take all of those in turn because I don't think this court's
01:21:49cases speak that broadly.
01:21:51I definitely don't think that the Office of Legal Counsel opinions stand for this broad
01:21:56proposition that unless the president is specifically named, he's not in the statute.
01:22:01And I don't think that that's necessary in order to afford adequate protection for the
01:22:07president's valid Article II functions.
01:22:09You said unless, sorry to interrupt, but I want to just get this out and you can incorporate
01:22:13in the answer.
01:22:14Unless there's a serious constitutional question.
01:22:16Correct.
01:22:17Well, it's a serious constitutional question whether a statute can be applied to the president's
01:22:24official acts.
01:22:25So wouldn't you always interpret the statute not to apply to the president, even under
01:22:31your formulation, unless Congress had spoken with some clarity?
01:22:35I don't think across the board that a serious constitutional question exists on applying
01:22:40any criminal statute to the president.
01:22:42The problem is the vague statute, you know, obstruction in 371 conspiracy to defraud the
01:22:47United States can be used against a lot of presidential activities historically with
01:22:53a creative prosecutor who wants to go after a president.
01:23:00Well, let me try to backtrack a little bit.
01:23:03That's what we're talking about historically is the risk that, and going forward, the risk.
01:23:09So you can take all of that.
01:23:10I think that the question about the risk is very serious and obviously it is a question
01:23:15that this court has to evaluate.
01:23:18For the executive branch, our view is that there is a balanced protection that better
01:23:24serves the interests of the constitution that incorporates both accountability and protection
01:23:31for the president.
01:23:32And I want to go through the protections that do exist, but perhaps it's worth returning
01:23:37at the outset to the statutory construction question that you raised.
01:23:41The office of legal counsel has said, uh, the offense of bribery, of course, uh, applies
01:23:46to the president.
01:23:48It does not name the president.
01:23:49Justice courses, section 201 does not specifically name the president assume that's personal.
01:23:55So well, I think that that's what Brewster said.
01:24:00Bribery stay.
01:24:01Thank you.
01:24:02Justice Jackson.
01:24:03Just to pick up where justice Barrett left off.
01:24:05I think I heard you say that it, even if we decide here something or a rule that's
01:24:11not the rule that you prefer, um, that is somehow separating out private from official
01:24:18acts and saying that that should apply here.
01:24:21There's sufficient, uh, allegations in the indictment in the government's view that fall
01:24:27into the private acts bucket that the case should be allowed to proceed, correct?
01:24:32As an ordinary case, it wouldn't be stopped just because some of the acts are allegedly
01:24:38immunized.
01:24:39Even if people agree that some are immunized, if there are other acts that aren't, the case
01:24:44would go forward.
01:24:45That is right.
01:24:46All right.
01:24:47Um, going back to the clear statement, uh, argument, I, I'm struggling with that argument
01:24:54because my understanding was that when a charged criminal statute is read narrowly in the presidential
01:25:01context to not apply to the president, um, a constitutional question is being avoided
01:25:08so that you're doing that to avoid having to deal with the constitutional question.
01:25:12So what is the constitutional question that is being avoided in those kinds of situations?
01:25:18A serious one.
01:25:20This is just an application of this court's ordinary construction of criminal statutes
01:25:25that if there is an available interpretation that would avoid a serious constitutional
01:25:30question.
01:25:31The court's preference is to.
01:25:32Right.
01:25:33And the nature, I guess I'm going at what is, what is my understanding is that what
01:25:36is being avoided in that situation is the question of whether a former president or,
01:25:42you know, can be held criminally liable for doing the alleged act that is being asserted
01:25:48in that statute consistent with the constitution.
01:25:51So we look at the statute, it's got some elements in it and we are saying, well, geez, if this
01:25:56statute and those elements apply to the president's conduct in this situation, we'd have to answer
01:26:03the question, can the president be held liable, consistent with the constitution for that
01:26:08behavior?
01:26:09Is that right?
01:26:10So the first step in that analysis, I just want to, yes, yes.
01:26:14But the first step is, is there ambiguity and these statutes apply to any person they
01:26:19apply to whoever there's no ambiguity in those phrases.
01:26:23This court in Nardone versus United States concluded that similar words, any person yes,
01:26:29applied to government officials.
01:26:30All right.
01:26:31Well, let's, let's just assume that we, I guess I'm just trying to get at, we're avoiding
01:26:36a constitutional question if we do that in, in the ordinary case.
01:26:41And what's confusing to me about this case is that we're not being asked to avoid the
01:26:45constitutional question.
01:26:47In fact, the question of whether or not the president can be held liable, consistent with
01:26:52the constitution, or does he have immunity is the question that's being presented to
01:26:57us.
01:26:58So I don't understand how the clear statement kind of analysis even works.
01:27:03It seems completely tautological to me for us to hold that presidents cannot be prosecuted
01:27:10under any criminal statute without a clear statement from con Congress to avoid the question
01:27:16of whether or not the constitution allows them to be prosecuted.
01:27:20We'd have to have a reason, right?
01:27:21I mean, we'd have, we'd have to have a rationale for applying the clear statement rule.
01:27:26I think the court would have to have some rationale that's not evident in either the
01:27:31existing doctrine or the text.
01:27:33And just one data point for the court in thinking about how the clear statement rule works in
01:27:38United States versus sun diamond, a case about gratuities that the court is probably familiar
01:27:43with justice Scalia wrote an opinion for unanimous court in which he used a hypothetical about
01:27:50what would happen if the president received a sports replica Jersey at a typical white
01:27:55house event with that violate section 201 C and the court offered a construction that
01:28:01it had to be for because an official act to avoid that problem.
01:28:05I think if there was such a well-received understanding that presidents are not included
01:28:10in general federal criminal law unless the president is specifically named, which he
01:28:15is not in section 201.
01:28:17Justice Scalia would have thought of that and some member of the court would have reacted
01:28:22and none did.
01:28:23All right.
01:28:24Let me go on to ask about, um, what you take the petitioner's position to be in this case
01:28:31because we've had a lot of talk about drawing the lines.
01:28:35Um, justice Kavanaugh, justice Gorsuch suggested that we should be thinking about blasting
01:28:41game and, um, that within the first we have private versus official.
01:28:46And then within official now we have something about core acts versus other acts as we try
01:28:51to figure out, you know, at what level the president is going to have immunity.
01:28:56But I took the petitioner's argument in this case not to be inviting us to engage in that
01:29:02kind of analysis.
01:29:03I thought he was arguing that all official acts get immunity.
01:29:09And so I didn't understand us to be, um, having to drill down on which official acts
01:29:16do.
01:29:17And so my question is, why isn't it enough, um, for the purposes of this case, given what
01:29:23the petitioner has argued to just answer the question of whether all official acts get
01:29:29immunity, uh, that, that is enough.
01:29:33And if the court answers that question the way that the government has submitted, that
01:29:38resolves the case.
01:29:39I want to make a clarification that I may have left the court with some uncertainty
01:29:44about the official act analysis that my friend is talking about is the Fitzgerald versus
01:29:50Nixon outer perimeter test, which is extremely protective of the president.
01:29:56It's not looking at core versus ancillary.
01:29:59It's saying everything the president does is a target for private civil lawsuits.
01:30:02That is not a great thing.
01:30:04And therefore they are all cut off.
01:30:06That's an absolute immunity kind of concepts, right?
01:30:09Anything that's official in the outer perimeter is not subject to liability.
01:30:15That is right.
01:30:16And so we don't have to then go, well, okay, we have the bucket of official.
01:30:19Now let's figure out which within that might be subject to liability.
01:30:23Not on the theory of absolute immunity, correct?
01:30:26Neither on the theory of absolute immunity or on our theory.
01:30:30On his theory, everything's protected.
01:30:32On our theory, there is no immunity.
01:30:34But this is where I would draw the distinction.
01:30:36There are as applied constitutional challenges that you run through the Youngstown framework
01:30:41and this court's customary method of analysis and you determine whether there's a infringement
01:30:46of article two.
01:30:48So what you're saying is even if we reject the absolute immunity theory, it's not as
01:30:52though the president is, you know, doesn't have the opportunity to make the kinds of
01:30:56arguments that arise as at the level of, you know, this particular act or this particular
01:31:03statute has a problem in retrospect.
01:31:07I think I hear you saying we should not be trying to, in the abstract, set up those boundaries
01:31:12ahead of time as a function of sort of blanket immunity, allow each allegation to be brought,
01:31:19and then we would decide in that context.
01:31:22Yes.
01:31:23With the additional note that petitioner has never made that argument, and I think it would
01:31:26be up to a district court to decide whether to go that route at this point in the litigation.
01:31:33He's put all of his eggs in the absolute immunity basket.
01:31:36All right.
01:31:37And if we, if we invite, you know, if we see the question presented as broader than that,
01:31:42and we do say, let's engage in the core official versus not core and try to figure out the
01:31:49line, is this the right vehicle to hammer out that test?
01:31:55I mean, I'd understood that the most, if not all, but most of the allegations here, there's
01:32:02really no plausible argument that they would fall into core versus not such that they are
01:32:09immune.
01:32:10We don't think there are any core acts that have been alleged in the indictments that
01:32:15would be off limits as a matter of article two.
01:32:17So if we were going to do this kind of analysis, try to figure out what the line is, we should
01:32:23probably wait for a vehicle that actually presents it in a way that allows us to test
01:32:28the different sides of the, uh, the standard that we'd be creating, right?
01:32:32I don't see any need in this case for the court to embark on that analysis.
01:32:36All right.
01:32:37The final sort of set of questions that I have have to do with what I do take as a very
01:32:43legitimate concern about prosecutorial abuse, about future presidents being targeted for
01:32:52things that they have done in office.
01:32:54I take that concern.
01:32:55I think it's a real thing.
01:32:57But I wonder whether some of it might also be mitigated by the fact that existing administrations
01:33:06have a self interest in protecting the presidency, that they understand that if they go after
01:33:14the former guy, soon they're going to be the former guy and they will have created precedent
01:33:19that will be problematic.
01:33:20So I wonder if you might comment on whether some of the caution from the justice department
01:33:25and the prosecutors and whatnot comes from an understanding that they will soon be former
01:33:30presidents as well.
01:33:31I think absolutely.
01:33:33And I would locate this as a structural argument that's built into the constitution itself.
01:33:40The executive branch, I think as this court knows, has executive branch interests that
01:33:45it at times asserts in opposition to Congress so that the proper functioning of the president
01:33:53is protected.
01:33:54And I believe that that value would be operative and is operative in anything as momentous
01:34:00as charging a former president with a crime.
01:34:02And I would also say, I think, and ask you to comment on, you know, presidents are concerned
01:34:09about being investigated, evaded and prosecuted, and it chills to some extent their ability
01:34:15to do what they want in office.
01:34:19And that's a concern on one side.
01:34:21Can you comment on the concern about having a president unbounded while in office, a president
01:34:27who knows that he does not have to ultimately follow the law because there is really nothing
01:34:34more than, say, political accountability in terms of impeachment?
01:34:38I mean, we have amicus briefs here from Professor Lederman, for example, who says, you know,
01:34:44a president would not be prohibited by statute from perjuring himself under oath about official
01:34:49matters, from corruptly altering, destroying or concealing documents to prevent them from
01:34:54being used in an official proceeding, from suborning others to commit perjury, from bribing
01:34:59witnesses or public officials.
01:35:00And he goes on and on and on about the things that a president in office with the knowledge
01:35:06that they have no criminal accountability would do.
01:35:09I see that as a concern that is at least equal to the president being worried, so worried
01:35:16about criminal prosecution, that he, you know, is a little bit limited in his ability
01:35:21to function.
01:35:22So can you talk about those competing concerns?
01:35:25So, Justice Jackson, I think it would be a sea change to announce a sweeping rule of
01:35:30immunity that no president has had or has needed.
01:35:35I think we have also had a perfectly functioning system that has seen occasional episodes of
01:35:43presidential misconduct.
01:35:45The Nixon era is the paradigmatic one.
01:35:48The indictment in this case alleges another.
01:35:51For the most part, I believe that the legal regime and the constitutional regime that
01:35:56we have works and to alter it poses more risks.
01:36:02Thank you.
01:36:03Thank you.
01:36:04Go ahead.
01:36:05So you concede that private acts don't get immunity.
01:36:08We do.
01:36:09OK.
01:36:10So in the special counsel's brief on pages 46 and 47, he urges us, even if we assume
01:36:16that there's, even if we were to decide or assume that there was some sort of immunity
01:36:19for official acts, that there were sufficient private acts in the indictment for the trial
01:36:24to go, for the case to go back in the trial to begin immediately.
01:36:27And I want to know if you agree or disagree about the characterization of these acts as
01:36:31private.
01:36:32Petitioner turned to a private attorney who was willing to spread knowingly false claims
01:36:36of election fraud to spearhead his challenges to the election results.
01:36:39Sounds private.
01:36:40As alleged.
01:36:41I mean, we dispute the allegation, but that sounds private to me.
01:36:43Sounds private.
01:36:44Petitioner conspired with another private attorney who caused the filing in court of
01:36:47a verification signed by Petitioner that contained false allegations to support a challenge.
01:36:52That also sounds private.
01:36:54Three private actors, two attorneys, including those mentioned above, and a political consultant
01:36:58helped implement a plan to submit fraudulent slates of presidential electors to obstruct
01:37:03the certification proceeding.
01:37:05And Petitioner and a co-conspirator attorney directed that effort.
01:37:09To write it quickly.
01:37:10I believe that's private.
01:37:11I don't want to.
01:37:12So those acts you would not dispute.
01:37:13Those were private and you wouldn't raise a claim that they were official.
01:37:16As characterized.
01:37:17We would say, Your Honor, if I may, that what we would say is official is things like meeting
01:37:21with the Department of Justice to deliberate about who's going to be the acting attorney
01:37:24general of the United States.
01:37:25Sure.
01:37:26Communicating with the American public, communicating with Congress about matters of enormous.
01:37:29Thank you.
01:37:30Thank you.
01:37:31If I understood Justice Alito, he's suggesting not that.
01:37:36He's suggesting whether, even if it is an official act, whether you still grant immunity
01:37:45if that act is not plausibly viewed as within the realm of law.
01:37:57He can correct me if I'm wrong.
01:37:59No, that was the question.
01:38:01That I think would be a superior rule than the categorical denial that emerged in the
01:38:06trial court here.
01:38:07I do think it would kind of make.
01:38:08I'm not quite sure why he used the word plausible because that seems to negate.
01:38:18Might as well give absolute if you're saying plausible because anybody could argue plausibility.
01:38:22We don't even require plausible.
01:38:25We require reasonable and qualified immunity.
01:38:30Well, I mean, one might argue that it isn't plausibly legal to order SEAL Team 6.
01:38:37And I don't want to slander SEAL Team 6 because they're, no seriously, they're honorable officers
01:38:45and they are bound by the Uniform Code of Military Justice not to obey unlawful orders.
01:38:52But I think one could say that it's not plausible that that is legal, that that action would
01:38:57be legal.
01:38:58And I'm sure you've thought, I've thought of lots of hypotheticals, I'm sure you've
01:39:02thought of lots of hypotheticals where a president could say, I'm using an official power and
01:39:08yet the president uses it in an absolutely outrageous manner.
01:39:12That if we're an objective determination may well be a interesting approach to take.
01:39:18So apply it to the allegations here.
01:39:21If it is plausible about the president insisting in creating a fraudulent slate of electoral
01:39:32candidates, assuming you accept the facts of the complaint on their face, is that plausible
01:39:41that that would be within his right to do?
01:39:43Absolutely, Your Honor.
01:39:45We have the historical precedent we cite in the lower courts of President Grant sending
01:39:48federal troops to Louisiana and Mississippi in 1876 to make sure that the Republican
01:39:53electors got certified in those two cases which delivered the election to Rutherford
01:39:56B. Hayes.
01:39:58The notion that it's completely implausible, I think, just can't be supported based on
01:40:01the face of this indictment.
01:40:03Knowing that the slate is fake.
01:40:06Knowing that the slate is fake, that they weren't actually elected, that they weren't
01:40:11certified by the state, he knows all those things.
01:40:15The indictment itself alleges, I dispute that characterization.
01:40:18The indictment affixes the word label to the so-called fraudulent electors.
01:40:23It affixes the word fraudulent, but that's a complete mischaracterization.
01:40:26On the face of the indictment, it appears that there was no deceit about who had emerged
01:40:30from the relevant state conventions, and this was being done as an alternative basis.
01:40:34But I want to address a more higher level point, a fundamental point, which is that
01:40:40as Justice Alito's question indicated, there's a whole series of structural checks other
01:40:45than criminal prosecution that are designed to deter these kind of outlandish scenarios
01:40:50are extraordinarily obviously illegal things.
01:40:53And that's been viewed in this court's opinions going all the way back to at least Martin
01:40:56X.
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