>> m sour? >> mr. chief justicend may it please the court, without residential immunity from criminal prosecution, ere can be no presidency as we know it.

for 200 34 years of american histy, no president was ever prosecuted for his official act. the framers of ouronstitution feuded energetic executive as essential securing liberty. if a president can be charged, put on trial and in prison for his most controversial decio as soon as he leaves office, that looming threat will distort the president's deciomaking precisely whenoland fearless action is most needed. every current president will face the fact of blackmail and toion by his political rivals while he is still in office the imicions of the court's decision here extend far beyd the facts of this case. could president george w.ush have been sent to prison for obstructing an official ocding or allegedly lying to congress to induce war in iraq?

could president obama be charged with murder for killing u.s. citizens abroad by drone strike? could pridt biden someday be charged wit unlawfully inducing miants to enter the country legally for his border policy. e answer to all these questis no. prosecuting the presidt r official acts is an innovation with no foothold in history or tradition and incompatible with our constituon structure. the origaleaning of the executive vesting clae,he framers understanding and unbroken historil adition spanning 200 yrs and policy coidations rooted in the separation of powers all counsel against it. i welcome the courts questions. >> mr.sauer, to your last point koba could you be more precise? >> it's oted in the vting clause. >> how does that happen?

>> the source of it is that the exute vesting clause does not include only executive powers laid out there and t encompass e powers originally understood to be included therein and marbury against din itself provides evidence this meant community that are priced this that affects the president'official acts from scrutiny sitting in judgment of the articles. that matches the original undetaing of the executive order. >> how exactly would we determine what an official act is? >> i point the card to two cases for that. fitzgerald against nixon is the best guidance the court gives, the outer perimeter test and the court and gazing out analysis that look at the level of

specificity at which the acts are described and that case which was a civil case. >> let's say the official act is appointing ambassadors in the president appoints a particular individual to the country but it's in exchange for a bribe and somebody says i will give you $1 million if i am made ambassador. how y analyze that? >>hawould follow this discussions i brewster that brery is not an official act which matches a common-law background. the way the court distinguished is thesere not official acts. it would be essentially unrestricted will before the congre. >> accepting the bribe is not an official act but appointing an ambassador certainly within the official responsibility of the president. how does your official acts or the official act order or

boundary come into play and it's going to be official assuming e esident is innocent. thqution is whether he will be found innocent or glt >> again, i think bruce versus johnson in a slightly different context. the indictment has to be expunged, all the immune official acts determine what's official and what's not official. >>ou say we are prosecuting because you accepted $1 million as -- are you supposed to not say what it's for because within the preside's official duties? >> there would have to be an individual source of evidence r that. this indictment chaeshat this court describes as un to scriptable powers by the pridt. they are purporting to regulate the exercise of the president,

things like his ability to speak directly to the american public and core exercises of his authority under the remmendations clause. the measures he thinks nesry and expedient. you have an indictment of this case that goes of the heartland of the president's powers. it alleges a series of official ts and tries to tie them together by saying there was a private purpose in that case and that's the situation which could be - >> it has to be alleged but it has to be proven. it's a concept long viewed as an -- is appropriate that there is something so fundamentally evil that they have to be protected agnst. i think and your awer below, i will give you a chance to say if you stay by it -- if the president decides that his rival

is a corrupt psoand he orders the military or order someone to assassinate him, is that within his official acts r which he can get immunity? >> that could well be an fial act. >> icod and he's doing it fopersonal reasons. he's not doing it like president obama's alleged to have done it to protect the country fm terrorist. he's doing it for personal gain. isn't that the nature of the allegations here? that he's not doing them -- these acts for furthan of an official responsibility. he'doing it for personal gain. >> i agree with the characterization in the indictment and that confirms because the characterization is that the series of oicl acts -- >> community says even if you

did it for peon gain, we will hold you responsible. how could that be? >> that's an extremely strong contradiction of this case. >> we go back to justice thomas's question which is where do tt come from? there are amica who tell us the founders actualltaed about whether to grant immunittohe president. in fact, they had ste constitutions that granted some criminal immunity to governors. and yeth didn't take iup instead, ty passed an impeachment clause that basically says you cannot remove the president from office except by a trial in the senate but you can impeach him after. orou can impose criminal

liability. we would be cating a situation in which we would be saying, thiss at you are asking us to say which is that a president is entitled not to make a mistake but more anhat. the president is entitled for total personal gain to use the trappings h oice, that's what you are trying to get us to hope. without facing criminal liability. >> i would say three things in response. the doctrine that immunity does not turn on alleglyroper motivation is something this court has reaffirmed in at least nine or 10 -- >> absolute immunity but qualified immunity says whatever act you take haso be within what a reasonable person would do. i'm having a hard time thinking

that creating false documents that submitting fae docen, that ordering the asssation of aiv, accepting a bribe and countless other laws that could be broken for personal gain, that anyone would say that it would be reasonable for president or any public official to do that. >> this was answed very persuasively in fitzgerald that this particular act would b done for an unlawful purpose or wasnloved lawful could be in every case and therefore if tha was the doctrine that the allegaonf improper purposes what deprives the objective a or of immunity that immunity would have n purchase and that's reflected in many cases. >'the work of the improper motive at least in the absolute immcontext to tell uwhat our official acts and whatreot? i understood that even -- first

of all, your ask is your principal position. you want theamkind of doctrine we've applied in other contexts when you say in official has absolute immunity. my understanding is when we sa that, we mean for their official acts. is that right? >> yes. >> so any official acts in that world, the real decision-mang from a court standpoint is whether or not somethi ian official act or not, correct? >> tt's an important determination. >>t's the determination in thabsolute immunity world because of you determine it's an fial act, then the principle is you get immunity fo it, correct? >> that is correct. >> my question is how do you determine or maybe justice thomas, how d determine what's oicial act? we talk about the kinds of scenarios justice sotomayor broughtp,ne could say that when the president is using the

trappings of his office to achie personal gain, he's actually not acting officially even at the doctrine was absolute immunity so what do you say about that? >> to the last point, tt allegation that this was motivated by an improper private purpose could be made in every single case. >>nderstand that but it would have to be made just even if we had the doctrine of absolute immunity, that same legation and the facts related to it would come in because th person would be arguing that he was not acting in his official capacity and not doing something offialhe was doing it person, rrect? >> aee but the objective -- the point i would make is that in fitzgerald, they emphasize that would result in an intrusive discussion or deteinion of the presidents personal motives every official act. this is not just in the case of >> another quick qstion before

my colleagues take it over -- at the beginning of your analysis when you're giving your opening statement, you were talking about, you suggested the last of immuni a the possibility of prosecution in the pridtial contacts is like an innovation. i tood to be the status quo. ierstood that every president from the beginning of time essentially has understood that there was a threat of prosecution if for no other reason than the nstution suggests they can be prosecuted after impeame, that the office of counsel had said forever that presidents are amenable to a threat of prosecution and they have continued to function and do their job and do all the things presidents do. it seems tmehat you are asking now for a change in what the law is related to immunity. >> from what benjamin frankl

said at the constitutional convention which reflects the fode original understanding and tenure which is at the constitutional convention, benjamin franklin id his three -- this provides one example only of a chiefagtrate who is subject to criminal prosecution and everybody cried out against that. >> i understand but since beam franklin, everybody has thought including the presidents who held the office that they were taking this office subject to potential criminal prosecution, no? i see the >> evidence inthe other way. marbury versus madison discusses broughimnity. >>hawas up with the pardon r president nixon? everybody thought that presidents couldn't be prosecuted, than whawathat about? >> he was under investigationt the time with official and private conduct. everyone understands that since president grants carriage writing into -- incident,

everybody has understood that e prent can be prosecuted. >> there seems to be common ground be just between you and your colleague and the o side that no man is above the law and the president can be prosecuted after using his office for his private conduct, is that rit? >> we agree with that. >> as we been exploring today, thquestion becomes and how to segregate private from official conduct that may or ma not enjoy some immunity and i'm sure we will spend a lot of time ploring that. in blasingame, the chief justice express some views about how to segregate private conduct for which no man is abovth law from official acts. do you have any thoughts about the test they camep th there? >>specially if it's understood through the lens of a separate

opinion is a persuasive test. it would be a great source for this court to rely on. itmpsizes the breadth of that test and talks about how actions that are plausibly connecd the president's official dutie are official acts andt emphasizes but cse casef her considerations that should be treated as immune. those are the aspects of guiding this. >> it left open in that case the possibility of further proceedings and trial. >> exactly right and that would be a natural crsfor this court to take in this se the court should and reverse the dcc that there is no thing is official acts -- >> you would agree further proceedings would be reqre >> that's correct. i would point to anderson versus creighton where ther is two stages of proceedis. there is looking at the indictment and the charging documents and see if alleging

official actan if not, determine thercod be a factualroeding under mitchell against foresight -- against fot wod have to occur. go ahead. >> you begin what you believe that immunity from criminal prosecution is essential for proper functioning of the presidency. my question is whether the very rost form of immunity you are advocating is really necessary in order to achieve that result. just to take o psible alternative, suppose the rule where that a former presint cannot be prosecuted for official act unless no pusible justification could be imagined r what the president did, taking into account history and

legal precedent a t information that was provided to e present at the time when the act was taken. with that be sufficient? or why would it be in for sufficient? >> that might be mh better rule that what emerged in the lower course. we think it would be insufficntecause the law is talking about using e presidents motes a intrusive consideration of the presidents motives as transforming acts official and unofficial would come into play. once you can make that allegation, then you've opened the door you no longer have a clear rule. you have a determination in ersingle case. >> what if did not involve any objective, it would look objectively at the various relevant factors. >> that sounds a lot like blasingame. if you look at the separate

opinion, tt y not be different than ate propose in court today. >> flashing game had to do with the different dream private and official conduct. that's what i underan >> this would applanit's a possibility but i don't ow whether it's a good or bad idea or can be rid from the structure of theonitution or any other source. but th wld be applied in a truly objective grounds. when the president invokes an official power in taking the action that is at issue. >> the reason i think of blasingame as it talks about an objective context with specific determination to winnow out what's official and private conduct. >> i'm sorry, if i understood justice alito, he suggesting not that. he suggesting whether even if it is an official act whether you still grant immunity if that act

does not plausibly viewed as within the realm of law. he can correct me if i'm wrong. >> that was the question. >> that i think would be a superior rule then what is in the categorical file that emerged in the trial. >> i'm not quite sure whye e the word plausible because that seem to negate, might is well give absolute if you say proud auble because anybody could argue plausibility. we don't even require plausible, we require reasonable and qualified immunity. >> oht aue that it is notlausibly legal to order seal team six and i don' to slander seal team six because seriously they are honorable.

they are bound by the uniform code omitary justice not to obey unlawful orders. think one could say that it' notlaible that that is legal, that the action would be ga i'm sure you've thought of lots of hypotheticals and 'm sure you have as well where president could say i'm using an official power and yet the president uses it in an outrageous manner. >> that may well be an objective determination. >> apply it the allegations here. what is plausible about t president assisting in creating a fraudulent slate of ecral candidates. assuming you a sect the facts of thcolaint on their face, is that plausible that that would be within his rights to do? >> absolutely, we've had

historical precedent with esident grant sending federal troops to mississippi to make sure the republicanleors got certified in those two cases icdelivered the election to rutherford b hayes. the notion that that is implausible, can't be supported based on this indictment - >> knowing that e slate is fake and they weren't actually elected and they weren't certified by the ste, he knows all those things? >> the indictment itself alleges an effects of word label to the word fraudulent. that's a complete mixed characterizati. it was there no deceit about who had emerged from the cveion and this was done on an alternative basis. wa to address the higher level point which is that there is a whole series of structural

checks other than criminal prosecution that are designed to ter these kinds of outlandish scenarios or obviously illegal things. that's been viewed in this court's op -- >> where do you think the d.c. circuit judge wrong and how it versus what personal?fficial >> i rd e opinion below in this case. it does not matter the logic of their opinion. there is no immunity for official acts and therefore that the end of the story. i don't really think they went wrong in blasingame when they engaged in the same determination with respect to what's official and what isn't. there we agree wh st of what that opinion says. >> for some official as at are not within the article to exclusive per so official acts but not within the article to exclusive power, even for those, i assume you woul think that a

clear statement has to be required, clear statement in the statute covering the preside if the official acts are going to be criminalized. >> obviously,t e highest possible level when it comes to the unrestricted will powers in this indictment -- >> i'm assuming t elusive powers are walled off and can't prosecuted. there are a lot of official powers that are t clusive to the president under article two authorit for those, i understood you to say aa nimum, there would need to be cartatement in the statute referencing the president so that the president is on notice and can conduct himself or hse accordingly. >> that's correct and that would be consistent. >> can iw upn that? you can see the private act don't get immunity. >>e do. >> in the special counsel brief

on pages 46 and 47, ues us even if we assume or were to decide or assumthe was some sort of immunity for official acts that there was insufficient privatectmeant for the trial --or the case to go back into trial immediately. i wanto know if you agree or disaeebout the characterization of these acts as private. the commissioners let that spread to a private attorney and was willing to spread rumors about eltion results. >> it sounds private. >> geek conspired with another ivate attorney that had the false allegation to support a challenge. >> that also sounds right. >> three private act throu attorneys and a political consultant help implemt plan to submit fraudulent electors to obstruct the certification results. >> believe that's private.

>> so those acts you would not dispute, those were private and u uldn't raise a crank -- raise a claim they were official? >> but we would say is officials things like being with the depame of justice to delibera aut who will be the acting internal -- attorney general of united states, comparing cadets committed getting to the public or the senate. >> thank you. >> you, counsel and what is the consequence in terms of going forward with your acknowledgment that those are private acts as opposed to official acts? >> if you look a the indictment here, there'a bunch of acts that are clearly official. there may be allegations that most ratto what the government has described as private aim or end and the court shld address its output remand for a brewster like determination like what's official and what'prate. the official stuff has to be expunged from the indictment and there has to be a determination of what's official to stage a determinio

>> if you expunge the official rt from the indtmt, that's like a one legged stool. giving somebody mey is not bribery unless you get something in exchange. what youet in exchange the come the investor of a country, that is official the appointment it's within the president's prerogative. the unofficial par is i will get a million dollars for it. if you say you have to expge the official part, how does that go forward? >> this particular indictment, we don't believe it would be able to go forward. if you look at the government's brief in his case divides the indictment into in other than the electors allegations. they haven't disputed it ifhe are official acts but they say we tied together by chacrizing it as done in the allegations the court just referred to by an improper private aim were end that just

runs at loggerheads. the improper motivation is what you look at. >> justice thomas? >> in assessing the official acts of a president, do you differentiate between president acting and the president acting as a candidate? >> yes, we do. we don't dispute the blazing me objective of that. >> in this litigation, did y challenge the appointment of special unl? >> not dirtlbut we have done so like in the florida case and we agree with the analysis provided by attorney general meese and casey and itois to an important issue. one of theirrgents is that

we should have the assumption of regularity. that runs into the reality we have here an extraordinary prosecutor early dish prosecutorial power exercised and confirmed by the senate at any time. we agree with that position. we haven't raised it yet in this case when it went up on appeal. >> justice alito? >> wen yu stadia official action be expunged fm the indictment, that in itself would not achieve much unless evidence of those official acts were pcled at trial. is that what you are saying, that prosecution should not be peitd at trial to prove the official acts as part o the conspiracies tt e alleged? >> absolutely and that's the clear indications of brewster and johnson. >> thank you. >> i'm a little bit nfed by that. if you have a scheme toefraud

or a scheme to accept bribery, there is evidence from which you n fer that screen -- that scheme and one is the appointment actually happened. it's an offiaact. you wouldn't expunge that as evidence. you wod struct the jury tt there is no viability for the actual appointment. the liability is for accepting the bribe. similarly here, i don't ink the indictment is charging that the obstruction occurred solely beusof conversations with the justice department. they are saying you look at all of therite acts and you look in the context of some of the public acts and you can infer e tent, the private intent from them. i'm not sure that i uerstand why your problems couldn't be

taken care of at trial with an instruction if we believe, if the court were to find and i'm not sure how they cod t if it were to find thaso public acts could not be the basis of criminal lbity. >> the best thing i can say to that and i think this ties into the chief justice's question about a one legged stool. rooster and johnson in subsequent calluse essentially say that that this a one legged stool probl. some of the prosecutions can proceed in that the implication of official immunity which is dictated in the constitution by the executive vesting clause. >> to continue on in justic barrett's vein and ask you about some of the allegations of the indictment and whether they are official acts were not in your vi. the dendant signed a verification affirming full selection of fraud and allegations made ohi behalf

on a lawsuit filed in his name against the georgia governor. >> i don't think we've disputed that. that is unofficial. >> same for the defda calling the chairwom othe republican national cmittee and esther together electors d targeted states falsely represented that such ecrs votes would be used only of ongoing litigation and one of the states changed the results of t defendants favor? >> we have taken the pitn that that's official. >> why would that be official? >> it's based on the historical example of president grant and i's something that was done pursuant to the exercise of the core recommendation clause power. >> couldn't he have taken this action just in the status of a candidate? >> the fact that he could have doneo doesn't demonstrate that he did do so. based on the allegations, it's clear he did not that this was

done in an officl capacity. >> the defendant asked the arizona house speaker to call the legislature into session to hold a hearing based on their clmsf election fraud. >> absolutely, and officialct for presidento communicate with states to defend the integrity of a federal election and communicate with state officials and urge them to view what he views as their job under state law and fer law. that's an official act. >> attempting to defend the integrity of the election is the dense. the allegations that he was attempting to overthrow an election. >> exactly right a nther allegation should make a difference as to whether he's immune. that's extremely strong with this court. >> does it strike you as odd that your understanding of immunity goes way beyond what olc has ever claimed for a former presint >> the opinions here are strong

supporting us because any time a congressional statute gone touching the president's prerogatives, they said we will interpret thetate narrowly to avoid it. >> that's a different question. what olc has always said that sitting presence get immunity but rm president's? no. there might be a different argument made about whether a statute or wheth a statute i applied to a particular conduct is properlyvaable against the president. that's a very different argument than the immunity claim that you are making here. olc has definitively not supported this. >> i don't know if i would put it that way. i don't recall them addressing it but there is the language of cas like marbury and statements made by bjamin franklin at the constitutional convention, statements of or washington talking about the massive risk of strife and how

that could destroy the government that's what we rely on prcipally. my sitth olc opinions because ifhere's any statute that ght impact on the president's prerogatives, they interpreted tovoid that. >> if a president sells nuclear seekers to a foreign adversary, is that immune? >> that soundsimar to the bribery example and likely not immune. you have to be in peace and convicted first. >> what does it mean iit structured as an official act? >> i don't know wther that would be an official act. you'd have to apply a different analysis. >> how about if a president orders the military to stage a coup? >> as the chief justice pointed out earlie tre is a whole

series of guidelines against that. ucmj prohibits the army om following a plane for no lawful t. if one adopts the fitzgerald test, that might be impeached and convicted beforhes criminally prosecuted. >> this president will order the litary to stage a crew n longer president and he ul't be impeached. he ordered the military to stage a coup and you are saying that's an officl t. that's immu. >> i think it would depend on the circumstances whether it was an official act. >> what does that mn depend on the circumans? he was the psident, he is the commander-in-chief. talks to his generals all the time and he told the generals i don't feel like leaving office and i want to stage a coup.

is that immune? >> if it's an official act, there needs to be ieament and conviction before and because the framers knew the risk. >>s in official acts? is it an officialct? >> the way he described that hypothetical, it could well be but i just don't know. it's a ctpecific contacts. >> the answer sounds to me it's an official act but it sounds d. >> is certainly sounds very bad that's why the framers have a whole series of structural checks that have successfully prevented that very kind of extreme hypothetical. that is the wisdom of the framers. there is a risk that need tbe guarded against was not the notion theredent might escape metal prosecution for something very unlikely. is much more likely instructed to the public, the rest -- the

risk -- >> the framers did not put an immunity clause into the constitution. there once there was some munity clauses and state constitutions but they di't provide immunity to the president. not so surprising, they were reacting again a monarch who claims to be above the law. wasn't the whole poi tt the president was not a monarch on the pridt was not supposed to be above the law? >> ty did put in immunity clause, the executive action close -- clause which set rt in broad language marbury against madison. they also discussed and consideredhawould be the checks on the predey and they did not say he had criminal precion at the constituon convention. njamin franklin said that was not there.

>> thank. >> justice gorsuch? >> returning to the chief justice's hypothetical about the ambassador sale in bribery. congress has a statute that names the president and says he can be criminally prosecuted for bribery presumably after he leaves office. outside the core are t justice kavanaugh was talking about, when congress speaks clearly, couldn't a statute like that, couldn't congress provide a statute like that that would allow whole manner of evidence to come in to ovthe case? >> o position is that would have to be in on official act, pulyrivate conduct for the prosecution to goorward. >> but outside the core areas of exute power, if there is a clear statement from congress that something is unlawful and it applies to e presidenti'm

struggling to see why in that case perhaps the evidence could come in. >> the strongest possible cases what you described dcre as the core executive powers. the holding -- this doesn't turn on how central and legislative act is. it's an unofficial act wch applies to the outer perimeter of the fitzgerald. >> what would happen if presidents were under fear that their successors would criminally prosecute tm r their acts in office, whether they are engaged in drone strikes, you know all the hypotheticals. it seems like one of the incentiv tt might be created is for presidents to try to pardon themselves. do youave any thoughts about that? >> i didn't think about it until you asked it.

that might be created. >> we've never answered whether a president can do that. happily, it's never been presented to us. >> if that remains in place, that will likely remain the case. in fitzgerald, it emphasized the real concern of being bold and fearless action. is the president going to have to make a controversial disn where his political opponents will come after him that minute he leaves office? will that dampen the ardor of that president to do it r constitutional structure demands of him or her which is bold and fearless action in the face of controversy. >> perhaps if he feels he has to, he will pardon himself every four years now. >> as the court pointed out, that wouldn't provide security because the legality of that is something that's never been addressed. >> in addition to impeachment at youisssed his supportive liability. you don't contest that everybody

foowg an unlawful order can be immediately prosecuted, can -- do you? if the president gives an unlawful oer, call in the troops in the examples we've heard, every subordinate faces criminal prosecution, don't they >> that is what it was said at the constitutional convention. th wld have to be a statute that wou cer for them to be prosecuted. we've got lots of status. e criminal law books are replete. is that one check that's available? >> if that statuteas doing what marbury says y c't do which is going after the subordinates, the franklin clear statement role might be employed and you might not able to go

after that president. i don't thk ngress says we can go after the president but we c cck out the president talk t congress and we will put in criminal statue that says if you provide false information to congress, in carrying out the present recognitio powers, you can be prosecuted. that would be a difficult question. the fundamental point of drawing at distiti is an excellent distinction. to follow up on the olc opinion question, they articulate a clear statement rule as to this court's case for covering official acts. none of the statutes cited here have a clear statement covering the president, therefore meaning the pridt cannot be charged for any official acts under the

statutes. >> that's absolutely correct. >> th's separate from what's fial versus what's personal. for the bucket that is official, there is no clear statement period? >> as to private conduct, we don't think the clear statement rule would be invoked. these statutes in the iit-- in the indictment are far afield to criminalize in clear terms the prese's official acts. >> just to clarify this, the presidents not abo t law and the president is not a king and the founders thought that. in respoe that, t president is subject to proseciofor all personal acts just like every other american. the question is asked taken in her official capacity. >> there would be a whole series of structural changes in

additi tthat wish to terror and has derd perfect presidenti mh malfeasance for 200 years. >> on the source of immunity, do not explit constitution but executive privilege is not explicit in the constitution yet in united states versus nixon, the court unanimously said the article to executive power in the constitution encompassed executiverilege in the same prinplpresumably would apply to executive immunity being the compass which in -- withith executive powers. >> that's coecand there's a telling passage where this ur talked about there is a letter from james madison to thomas jeffern the time of the founding where madison said ty did not expressly take away removal power. if the original understanding is that t cuse broad enough, it has to be taken away which is the opposite of resumption they

are advancing here. >> lastly, i think you've acknowledged in response t other questions that some of the acts in the iictment are private in your view is that some are official. is it your position that that an analysis of which should be undertaken in the first instance by the d.c. circuit judge the distri crt? >> most likely a district court under the logic of anderson. >> thank you. >> you've argued that the impeachment clause suggests or acquires impeachment to be a gateway to criminal prosecution, right? >> i think that'the plain meaning of the second phsen the clause. >> there ay other people who areubct to impeachment include nine sitting on this bench. don't think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution f any of the many other officers subject to impeachment. why is the president different when the impeachment clause doesn't say so? >> someone how important has

made the opposite suggestion. the solicitogeral borg reviewed the historical materials of the sequence is mandatory only as to the esent. that is the doj view of the pehment judgment clause which is exactly our position. the sequence is mandatory only for the president. this contradicts the plain language of the cstution and 100 years of history. doj admits the framers intent. we think that practice should not be extended in this context. >> what if criminal intent is not discovered until after president isutf office? >> the frars assumed the risk of under enforcement by constructing these checks.

this way we do not lose bey. >>he special counsel makes a pot which is pretty compelling. you admit that if the president were successfully in peace, he could be terminal -- criminally prosecuted after impeachment? >> assuming the prosecution was centering on the time of th offenses. >> granted. you also say these criminal atutes explicitly mention the president but don't apply to m. how can you say he would be impeachment while at the same time saying he is exempt from these criminal state >> the a statutes >> two othe. >> they haven't done a comprehensive review. under franklin, it's not a magic

word requirent more fundamentally, they can see there arstutes that exist. muchchment can occur as a result of private conduct. the judgment clause, it does significant work by authorizing the subsequent prosecution of a president. what the framers were discussing in the convention s ncerns about private conduct. >> pick jtice kagan's explof a president who orders a coup, let's imagine he is ied and convicted for ordering that coup and let's accept for the sake of argument your position that that was official conduct. you are saying he could be positive for that even after conviction and impeachment proceedings? if there is not a statute that expressly refenc the president and me criminal for the president? >> treould have to be a statute that made a clear stement that congress has to regulate the president's conduct. >> thank you.

>> justice jackson? >> i now underanbetter your position in your discussns with justice kavanaugh. bame clear you are saying that for tvate acts of a esident, there is no immunity but for the official acts of the president there is immunity. is that your position? >> i agree with that. >> one thit occurs to me is that this sort of difcu line drawing problem we are having with theseypheticals is it a private actor republic act? it's being this aceta it by that assumption. if official acts did t get absolute immunity, it wouldn't matter, we wouldn't have to idti which are private and which are public, correct? >> that is the approach of the d.c. circuit judge>o the extent were worried about how figure out whether it's private or public on the we have to understand we are only doing that because of an underlying

assumption that the public acts get immunity. let me explore that assumption. why is it as a matter of theory that the president would not be required to follow the law when he is performing his official acts? everyone else, there areof folks who had very high-powered jobs to make a lot of nsequential decisions and they do so against a backdrop of potential criminal prosecution if they should break the law in that capacity. we understand and we know that the vision othunited states has the best lawyers in the wo when he is making a decision, he n consult with pretty muc anybody as to whether or not this thing is criminnot. why would we he situation in which we would say that the president ou be making

official acts without any responsibility for following the la >> i respectfully disagree with that characterization. the president is absuty required to follow the law in his fial acts but the reme for that -- could he be subject for personal vulnebity and being sent to pris for a bad decision he made in office? >> othereople who have consequential jobs and are required to follow t law make those determinations against the backdrop of that same kind of risk. what is it abo t president? i've heard you say it's because e esident has to be able to act boldly andak consequential decisions. sure, but there are lots of people make life and death decisions but if they don't, they could be sent to is. >> from fitzgerald, that is the

inferenceasoning this court rejected. >> fiterd was a civil situation in wchheredent actually was in a different position than other people. because of the nature of his job, the high-profile nature and the fact that he touches so many when you talk about private civil liability, anydyim street can s h and we can see that the present was sort of different than the ordinary person if you say he should be immune from cil ability. when we are talking of criminal how the president stands in any different position with respect to the need to follow the law in doing his job than anyone els >> he is required to followhe law. >> but he's not if there is no threat of criminal prosecution. what prevents the president from doing whatever he wants? >> all the structural checks idenfi in fitzgerald.

who >> i'm not sure that's much of a backstop. i guess what i'm more w about is you seem to worry -- be worriedbout the president being chill. i think we wouldave a significant opposite problem with the president wasn't -- the most powerful person in the world with t greatest amount of authority if he could go into knowing tt ere would be no potential penal f committing crimes, i'm trying to rstand what the disincentive is from turning the oval office into the seat of crimina activity in this country. >> i don't know if there is any allegation of this case. benjamin franklin said 've use the prosecutioabt chief exutive that everyone cried

out on and george washington said we are worried about factuafe. >> let me put this worry on the table -- at the potential for criminal liability is taken off the table, wouldn't there be a significant risk that fur presidents would be emboldene to commit crimesit abandon while theyn office? rit now, the fact that we are having this debate because presidents might be prosecuted, presidents from the beginning of time of understood that's a possibilit that might be what has kept this office from tuininto the kind of crime ctei'm envisioning. once we say no criminal liability, mr. president. n do whatever you want. i'm worried we would have a worse problem than the problem of the present feeling constrainetoollow the law while he's in office. >> i respectfully disagree with that. this is the regime we've

operated on under 234 years. >> let me ask you another estion. let me ask about the clear statement line of questioning. i didn't see you argue that lo i understand you have that in yo briefs but did you argue before the d.c. circuit judge about a clear statementit respect to statutes? >> yesinur separately filed motion. >> that's not the question in this case. the question in this case comes out yr motion for immunity. to bring in an argument that you didn't raise below, it seems you forfeit. >> i believe it's fairly cled within the question presented. >> why? >> the court expanded the question. >> but not a different statutory complication or determatn? that goes to constitutional

avoidance, statutory interpretation in u.s. for immunity which is a diert thing. >> i think it's ry close logically. to what extent does it exist in the argument is immunity exists to the extent that it grazes a great -- it raises a great >> that's tay circular.. you used tt argument to avoid constitutiuestions. you are asking us a constitutional question here so it doesn't evenak sense to talk autlear statements and overrule rule the waveco up in the context of an immunity question. let me ask you this -- one mortion -- what is the argument withhe president of united states who you say is bound by law is not unnoticed that he has to do his jocoistent with the law? to the extent the clear statement rule comes in, it's

about the person not being on notice i don't understand why congress in everyrinal statute would have to s and the president is cluded. thought that was the baground understanding that they are enacting a generally applicable criminal standard which applies to the president like everyone else. what is the cleastement that would be made in this context? >> under franklin, congress has to speak car before it interferes with the president's wers. we he an indictment here that seeks to criminalize objective context that falls within the heartland of core executive authority. >> thank you. >> thank you, counsel. >> mr. dreeben? maid plea the court, this court has never regned absolute criminal imnity for any public official. petitioner claims that a former president has prominent criminal immunity for its official act

unless he was first impeach and convicted. his novel theory would immunize foer president's for criminal liab for bribery, treason, sedition, murder such presidential immunity has no foundation in the constitutional construction. the frknew all too well the dangs a kg who could do no wrong. they devised aystem. here the executiverah is enforcing congressional statutes and seeking accountabitfor petitioners' alleged misuse of official power to subvert demoac that is a compelling public interest. in response, petitioner raises concerns aboential abuses.

establhelegal safeguards provide layers of protections with thele three crts providing the ultimate check. the existing system is a refully balanced framework. it protects the president, but not at the high constitutional cost of blanket criminal immunity. that has been the understandg of every psident from the framing through watergate and up to today. this court should preserve it. i welcome the court's ons. >> does the president have immunity or are you saying that there is no presidential munity even for official act >> yes, justice thomas, but it is important to puin perspective the position that we are offeri court today. the pre as the head of the arclto bnc can assert as

applied article two objections to criminal laws that interfere with an excluse wer possessed by the president or that prevent the preside fm accomplishing h cstitutional he assigned functions. at is the constitutional doctrine that currently governs the separation of powers. what petitioner is asking for is a broad, blanket immunity that would protect the president, a former presi from any criminal eose absent impeachment and conviction, which has never happened in our history, and we submit that is not necessary in order toe that the president can perform all of the important tasks that the constitution reposes in him. >> in nosoistant past, certain presidents have engaged various activitie,

operations, like operation ngse when i was a teenager, and yet there were no prosecutions. why? if what you are saying is right, if it seems that that would have been right for crimina prosecution. >> justice thomas, i think this is a central que the reason why there have not been prior criminal prosecutions ishat there were not crimes. i want to explain why there are layers of safeguards that assure that former presidtso not have to lightly assume crimina liability for any of their official acts. athe outset, there is a statutory constructionrinciple that is applicable here. it arises when there is a serious constitutional question about applying a criminal ate to the prede's act.

it is not and i'm sure we will discuss ts that no statute can apply to the president in his official capacity absent a designation of the president in it. but there is a principle that if there is a serious constitutional question, courts will strive to construe the the president.does not apply to in addition tot, the president i think has been ntioned earlier has access to advice from the attorney general and it would be a due process problem to prosecu a presint to receives advice from the attorney general that his actions were lawful absent the kind of clusion or conspiracy that is self represented a criminal violation, which i don't really see as being a realistic option. and if i could say one more thing because you raised the question about potti overseas taking of life and the office of legal counsel has drsed this quite specifically. there is a backgrod inciple of criminal law called the

public authority exception t liability and it is read into federal l unless congress takes specific action to ousted, which it never has dones r as i am aware, and in a ca in which the president soug engagen overseas activity that wod result in the taking of fe it did not say the federal murder statute doesn't that would be the crux of my friend's argument. instead, olc went through an teive analysis on whyhe public authority defenseould prevented from being considered a violation of law to go after a terrorist for example. >> the court of appeals below in the decision wreviing said "a former president can be prosecuted for his official acts because the fact of the precution means that the former president has allegedly acted in defiance of the laws."

do you agree wat statement? >> i thi isounds tall logically true, b iant to underscore that the obligation of aresident is to take care that the laws are faithful executed. >> i think it sounds ta illogically true well. as i read it, it says simply a former president can be prosecuted because he is being prosecut. >> i would not suggest that that is either e oper approach in this case were certainly not the gornnt's approach. arosecution does of course invoke federal criminal law. the allegations have to be presented to a grand jury. >> shortly after that statement in the cou, that is what they said, but there is no reason to worry because the prosecutor

will act in good faith and there is no reason to worry because the grand jury will have returned the indicen you know how easy it is in many cases for a prosecutor to get a grand jury to bring in indictment and reliance on the good faith of the prosecutor may not be enough in some cases. 'm not suggesting here. if those are thenl protections and it is topological and that iso longer your position, you are t fending that pition, why shouldn't send it back to the court of appeals or issue an opinion making clear that that is the law? >> i am defending e urt of appeals judgment and i do think there are layered safeguards the court can tak account that will ameliorate concerns about unduly chilling presidential conduct. th ccerns us. we are not endorsing a regime ate think would expose

former presidentso criminal prosecutions in bad faith, for political animus, without adequate evidence. a politically drenrosecution would violate the constitution underweight versus united states. it is t mething within the arsenal of prosecutors to do. prosecutors take an oh,he attorney general takes an oath. i don't want to overstate your honor's concern with potentially relying fully on good faith, but that is an ingredi and thenhe courts stand ready to aate motns based on selective prosecution, political . this court relied on those very protections in a case just two years ago. what concerns me is thcot of appeals did not get into a focused consideration of what acts we are talkingbo or what documents we are talking about because of its adoption of wh y termed and i agreed

right correctly is a taolical statement. because the factor prosecution was enough to take away any official immunity, the factor prosecution, they had no need to look at what courts normally privilege or immunity question. >> i think i would take issue mr. chief justice with the idea of taking away immunity. there is no immitthat is in the constitution unless this court creates it today. there is no textualunity. we do not submit that is the end the united states versus nixon was not a textually based case neither was nixon versus fitzgerald. we endorsed both of those holdings. whats portant is that n public official has had ab criminal immunity that my friend speaks of, even with respect to the speech or debate clause. it is narrow and is focused on legislative acts, it is not

focused on everything a congressman does, and it responds to a specific historal circumstance that involved the two other branches potentllharassing gislators and preventing them fr doing their jobs. that is why it ended up in the constitution. nothing like that ended up in president anth is because one of the chicerns of the framerwathe risk of presidential misconduct. they labored over this. ey adopted an impeachment structure that separated removal from office as a political remedy from criminal prosecution. this departefr the british model. the brith del was you get impeached and criminally prosecut a convicted in the same proceeding. amers did not want that. they wanted aolitical remedy in case a president was engi in conduct that endangered the nation. he could be removed. he can't be prosecuted as a

sitting president. that has been a long-standing e dertment position. >> you dispute propositions that a former president has some rm of immunity, but as i understand your argument, you do recognize that a former president has a form of special protection, namely that stateshat are alkaline -- plable to everybody must be interpreted differently under some circstces when applied to a former president. isn't that true? >> it is true because of the general principle that courts construe statutes to avoid serious constitutional questions and that has been the long-standing practice of the office of lel counsel. >> all rig, this is more than ju a quarrel abouterminology . whether it is immunity or special protection becae

involves this difference which yo are well aware of. if it is just a form of special precon, in other words stut will be interpreted dierently, then that is something that has to be litigated at trial. the former president can make a motion to dismiss and may cite opinionsndhe district court say, that's fine, i'm not bound by olc and i interpret it differently,o let's go to trial. and there has to be a trial and that may involve great expense and it may take up a lot of time and during the trial the former pridt may be unable to ga in other activities. then the outcome is dependent on the jury, t itructions to the jury and how the jy returns a verdict. so the protection is greatly

diluted if you -- if it takes the form that you have proposed. why is that better? >> it is better beusit is more balanced. the blant munity that petitioner is arguing for jt means that a criminal precution is off the tle unless he says that impeachment and conviction have occurred. those are polemical -- political remedies that are extremely diffulto achieve in a case where misconduct occurs close to the end of a president's term. core is unlikely to crank up the machinery to do it. the impeachment trial has to occur after the president has left office, there is an open question about whether that n happen at all. >> you are arguing against the most far-reaching aspects o argument. >> that is correct. and let me turn then to why -- >> do you agree that there are

some aspects of article two presidential power that are exclusive and that congress cannot regulate and therefore caot criminalize? >> aolely. >> for other officialct the president may ke that are not within that exclusive power, assume for the sake of argument this question that there is not blanke immunity r ose official acts, but tt preserve the separation of powers, to provide fair notice to make sure congress has thought about this that congress has to speak clearly to criminizofficial acts of the president by a scic reference. that seems to be wh e olc opinions suggest. i know you have a little bit of a eement with that. >> jti kavanaugh, i would like to take all of those in turn because i do not think this court's cases speak that broadly and i don't think the office of legalouel's opinions stand

for this broad proposition that le the president is specifically nam his not in the statute and i don't think that isessary to afford advocaterotection for the president's valid artie o functions. >> sorry to interrupt but i want toet this out and you can incorporate it you set unless there is a serious constitutialuestion. it is a serious constitutional question whether a statute can be applied to theredent's official acts, so wouldn't you always interpret the state not to apply to the president even under your formulation ues congress had spoken with clarity? >> i don't think across-the-board that a serious constitutional question exists on applying a criminal prosecutn the president. >> t problem is the vagueness that can be used against a lot of presidential activities historically with a creative

prosecutor who wants to go after esident. >> let me try to -- >> that is what we are talking about historically is the risk and going forward, the risk. you can take all of that. >> i tend to put the question about the risk is very serious. it is a question ths court has to evaluate. for the executive branch, our view is that there is a balanced protection that better serves the intestof the nstitution that incorporates both accountability and protection for the president. and i want to go through the protectionth do exist. but perhaps it is worth returning atheutset to the statutory construction question that you raised. the office of legal counsel has sa, it does not name the presidentm section 201 does not name the president. >> assume that is rsal.

that is what brewster said. >> the bribery statu in 607 says the president. i'ot iin front of me. there is that. let me just backup though a second of what was a quick exchange with justice kavanaugh wa to make sure i understand. did you agree that there e some core functions of the executive that congress cannot criminalize? >> yes. >> you can call it immunity or were can't do it, but what is the differenc >> we call it an as applied article to challenge. >> can we callt munity for shorthand's sake? i think we are narrowing the ground of dispute. iteems to me there is some eaou concede that there are official acts that congress cannot criminalize and now we e lking about the scope. >> i don't think i suggest, think it is a significant gap between any official act and the

small core of exclusive official acts >> i got that, but i want to explore that. r example, let's say a president leads a mostly peaceful protest sit in in front of congress because he objects to a piece of legislatn at is going through. and it in facdeys the proceedings in congress. w,nder 1512 c2, that might be correctly impeding an official proceeding. is that core and therefore immunized or whatever euphemism you want to use with tha for is that not core and therefore prosecutable? without a clear statement that applies to theresident. >> it is not core. the core kinds of activities the court has acknowledged are the thgshat i would run through the youngstown analys. it is a pretty small set, but things like the pardon power,

their power to recognize four nations, the power to veto giation, the power to make appointments. these are things the constitution specifically allocates to t president. >> so a president then could be prosecuted for the conduct i described? >> probably not but i want to explain the framework of why i don't think that that would be prosecution that would be valid. first, i think you need to run through all of the n categories of analysis. you may well default to it does not apply. >> that was my question. you said it fell outside that core we will call it immunity for simplicity sake. >> but the ia separate category. >>hy couldn't he be prosecut

for leading a civil rights protest in front of the capital at delays a vote on a piece of important legislation? >> i think what you need to do is run through all of the very president specific layers of analysis. one is whether the statute would be construed not to apply to his conduct even if it is not part of that small core of things congress can't regulate at all. if it prevents the president from fulfilling -- >> he did something more and it impeded and sought to influence an official proceeding. >> we are starting withhe layers of protection and we are down through whether the statute would be construed to apply to him. then there is the question of whether he has the state of mind.

>> nobody knows what corrupt innt means. he knows he is doing wrong, he know he shouldn't be blocking a coreman. >> let me get to the next layer that the preside doesn't -- does have aess to the attorney general and get regular lega advice and regular gets legal advice from the attorney general about the lawful scope of the president's activities. the attorney general advises him that as an incident of his article to authority and in carrngut the functions of the presidency, hean lawfully participate in that protest. it is kind of a first amendment analog to the president's official powers, which the court is explori iother cases. alternatively, the attorney general could advise him, there was nothing the language of the statute that carves you out,

i don't see a serious constitutional queand it and i wod vise you not to violate any criminal law. >> if he gets a negative opinion from the attorney general, he still couldn't? if he gets one does it anyway, he could be prosecuted? >> if we are down at that level will we e king is whether the president is subject to the criminal law and our answer is yes, he is subject to the criminal law. >> i understand that the only thing covered by that is the president is barred from soliciting or receiving funds in any room or building. >> that's rrt. >> official building. so, as i understand this, there artwlimited provisions mentioning the president that are included. there is a whole number of provisions that exclude the

president, many more that exclude the president, correct? is a small number on both sides. >> justice barrett made the point that if we say a president can't be included in a criminal law unless explicitly named, then that would bar the senate from impeaching him for high crimes orismeanors, because that means that he is not subject to the law at all. correct? that is a tautological. >> i think what justice barrett wasang and we would agree with that is tt der my friend's position after impeachment he could be prosecuted, but under his statutory construction approach erwould be nothing to prosecute him for. >> exactly, that is the point is if he is not coveredy e criminal law, he cbe impeached for violating it. all right. could we go further on this clear statement rule? e situations and you mentioned earlier in which we have looked

see if the president is covered is contextual, correct? >> correct. >> what are the factors we nelly look at? i'm thinking about whether t apa covers the president. >> crect. >> what we did was analyze what powers were being given to in the lawsuit and etc. we look at words, structure, separation opors iue relating to our case law that said you can't direct a president to do anything and this would have been a subterfuge for that. >> all correct. >> so i don'kn why -- how they would fason clear statement rule that would say when a loss ss any persons can't accept a bribe, that that permits the president to do it. >> so, i agree, ste sotomayor, that the way that this court has interpreted statutes thadoarve outhe

president was very context ecific. the franklin case basically involved a holding that we are highly unlikely to say that the president is an agency, something the government would be a peculiar understanding of agency, when the effective it woulde at we would review the president's decisions under statutes for abuse of discretion, which is a very extraordinary thing to do, even going back to marbury. marbury says discretionary acts of the president or not the kind of thingheourt reviews. >> goingack to what some of my colleagues have asked you, there appears to be some narrowing principles that the preside i subject to all criminal laws in all situatns do you agree that this affects re powers that he would not be

subject to any laws that attempted to limit those core powers? tt's correct. >> you are defining core powers as those specified by article two. >> that is potentially correct, yes. and the oy rds in the constitution of that -- that have to do with the psident in law is thahehall take care that the lobby faithfully executed, correct? that's right. >> hard to imagine that a president whbrks the law is ithfully executing the law, correct? >> he has to exete all of the laws. >> presidents have to make a lot of tough decisions about ing e law and they have to make decisions about questions that are unsettled and they have to make decisions bad on the information that is aible. did i understand you to say, ll, if he makes aiske, he makes a mistakehe is subject

to criminal laws just like anybody else? >> he is in a special poti for a number of reasons. one is that he has access to legal advice about everything he does. he is under a constitutional obgaon where he is supposed to beaithful to the laws and the nstution and making a mistake is not what lands you in a criminal prosecution. there has been some talk about the statutes issued in this case. i think they are fairly described as stutes engaging spiracies to defraud the united states with respect to one of the most important functions, namely the certification of the next presidt. >> i don't want to dispute that particular application of that 371 conspiracy to defraud the united states, but would you not agree that that is a pulrly open-ended statutory

prohibition? that fraudnd that provision under like most oth fud provisions doesn'teqre any impairment of a property interest? it is designed to protect the functions ofhenited states government ais difficult to think of a more critical function than the certification of who won the election. >> i'm not discussing the particular facts of this ce but it applies to any fraud that interferes seriously with any government operation. >> what the government needs to ows an intento impede, interfere, oreft a lawful governmental function by deception and it has to be done. these are not the kinds of activities that k any of us would think a president needs to engage in in order to fulfill his article two duties and particular a case like this one.

i nt to pick up something the urt said earlier about a public official acting achieve public ends. as applied to this case, the president has no functions with respect to the certification of the winner of the presidenal election. it seems likely that the framers designed the constutn that way because at the time of the founding presidents had no two term limit, they could run again d ain. they were expected potentially to want to do that. the potential for self-interest wouldxplain why the states conduct the elections, they send eltors to certify who won those elections and tpride votes, and then congressn extraordinary joint session certifies the vote. e president doesn't have an offici re in that proceeding. it is difficult for me to

understand how there could be a serious constitutional question about saying you can't use fraud to defeat that function, you can't obstructed through deception, you can't deprive millions ofots of their right to have their vote counted for the candidates who they chose. >> thank you, counsel. stice thomas? justice alito? >> we st briefly review the layers of protection you think exists? i'm going to start with what the d.c. circuits at. the first layer of protectio is that attorneys general and other justice department attorys can be trusted to act in a professional and ethical manner. >> yes. >> how robust is that protection? the vast majority of attorneys general and justice department attorneys and we both served in the justice departntor a long time are honorableeoe and they take their professional, ethical

responsibilities seriously, but there have been exceptions both among attorneys general and federal prosecutors. >> there hav rare exceptions, justice alitobu of ptection, i do think thisyers is the starting point and ifhe courts have concerns about the robustness of it, i would suggest looking at the charges in the case. >> i'm going to lkbout this in the abstract becsehat is before us does involve this paicar case, which is immensely important, but atever we decide will apply to all future president as for attorneys general, two have been convicted cminal offenses in office. others, a tcll palmer comes to mind, who is widely regarded as having abused the power of his office. would you agree with that? >> i would, but they are officials in a long line of attorneys general who did not and in department of justice

staffed mtiple people would do it their office. justice alito, the point wanted to make about this case does go to the general proposition. the allegations about the misuse of the department of justice to perpetuate election fraud show exactly how the department of justice functions in the way att is supposed to. petier is alleged to have justice to send frauduleent of letters to the states to get them to reverse electoral results. >> i understand that. but as i said, thi case will have effects that go far beyond this particular prosecution. so moving on to the second level of protection that the d.c. circuits cited. federal grand juries will shid former presidents from unwarranted indictments. how much protection t? >> it affords two levels of protti.

one is the probable cause finding requires evidence. some of the fears about groundless prosecutions aren't supported by evidence and they are not going to get out of the starting gate. >> there is the old thought about indicting a ham sandwich. you had a lot of experience in thjustice department. you come across a lot ofas where the u.s. attorney or another federal prosecutor really wanted to indict a case in the grand jury refused to do so? >> there are such cases. yes. >> oe ere is any clips too. [laughter] >> for the most reasons ecutors have no reason to bring a ca t a grand jury and secure an indictment where they don't have evidence to prove guilt under able doubt. it is self-defeating. >> the third is that they enjoy all the pteions afforded all crimin defendants. th be true at the end of

the day but a lot can happen between e time when an indictment is returned and the time when the foer president finally gets vindication, perhaps on appeal. isn't that corct t is correct, but i think we should consider the history of this country. as members of the court have observed, it is baked into the constitution that any president knows that they are exposed to potential imal prosecution. it is common ground that all former presidents have known that they could be indicted and convicted. and watergate cemented that understain the watergate smoking gun case involved president nixon and hr haldeman talking about and then deciding to use the cia to give a bogus story to the fbi to shut down a criminal investigation. >> mr. sour and otherha

identified events in the past wereredents have engaged in conduct that might haveeen charged as federal crimes and yo say, that is not really ue and this is page 42 of your brief, so what about president franklin doovelt decision to intern japanese americans dung world war ii? couldn't that have been charged conspiracy against civil rights? >> today, yes, given the court's decision in trump versus united ates in which -- trump vers hawaii in which the court sd korematsu was overruled and president roosevelt made the decision with the advicef his attorney general. >> is that really true? i thought there was relyo threat of sabotage, as did j edgar hoover?

>> there is a lot of historical controversy. that occurred during warme and it implicates a potential commander-in-chief concerns, concerns about the exigencies of national defense that might provide an as applied article to challenge atheime. i'm not sung today. but the idea that a decision atas made and was endorsed by the court perhapsrongly would supporinal prosecution under 241 which quires under knighted states that it had been made specific so there is notice to the presid >> we could go t other historical examples, i won't do that. let me touch briefly on a couple of other things. the relevance of advice of coand i wasn't clear what your answer is. if the presiets advice from the attorney general that something is lawful that an

absolute defense? >>es, i think that it is under the principle of entrapment. this is a due s doctrine that we referred to in our brief. we cited authority of this court that if an authorized govnmt representative tells you that wh y are about to do is lawful, it would be a root violation of due process to precute you for that. >> w't that give presidents incentive to be sure to pick an attorney general who will reliably tell the presidt at it is lawful to do whatev t president wants to do if there is any possibly conceivable argument in favor of it? >> think the constitutional structure protects against that ri the president nominates the attorney general and the senate provides aicand consent. these are the structural checks that have operated for 200 years

to prevent the kind of abuses that my friend fears going rwd as a result of this once in history prosecution. >> on the question of whether a president has the authority to pardon himself, which came up earlier argumen wt is the answer to that question? >> i 't believe the department of justice has taken a position. the onlyuthority is a member of the office of legal counsel wre that there is no self pardon authority. the department h n addressed it further and this court had not addresseitither. >> when you address that question before, are you speangn your capacity solely as a member of the special unl's team or are you speakingn half of the justice department, which has special institutional reonsibilities? >> i'm speaking on behalf of the justice department reprenng the united states. >> don'yothink we need to

know the answer at least two the justice department's position on thatss in order to decide this case? cause if a president has the authority to pardon himself before leaving office and the d.c. circuit judge right that there is no immunity from prosecution, won't the predictable result be tha presidents in the last couple days of office will pardon themselves from anything they might have been conceivably charged with committing? >> i really doubth, it presupposes a regime we have never cept for president nixon and as alleged in the indictment here. presidents who are conscious of having engag i wrongdoing and seeking to shield themselves. the political consequences of a president who asserted rit of self pardon that has never be recogzethat seems to contradict a bedro pnciple of our l tt no persians shall be the judge in their own case, those are adequate

deterrents so that this kind of dystopian regime is not goingo evolve. >> let me end with just question about -- whats required for t functioning of a stable democraticociety? which is something that we all want. i'm sure you would agrewi me that a stable democratic society requires tt candidate who loses an election, even a close one, even a hotly contestedne, leave office peacefully, if that candidate is the incumbent. >> of course. >> all right. if an incumbent who loses aer close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go offnta peaceful retirement, but that e

president may be criminally prosecuted by a bitr litical opponent, will that not lead us into a cycle that destabilize the functioning of our country as a democracy? and we can lookrod the world and find countries where we have seen this process where the loser hrown in jail. >> i think it is exactly the opposite, justice ato. there are lawful mechanisms to contest the resus an election. and outside the record, but i think a puic kwlge, petitioner and his aies filed dozens of electoral challenges and in my understanding has lost all but one that was not outcome teinative in any respect. there were jges that said in orr sustain substantial claims of fraud that would overturn an election result that is certified by a state, you

need evidence, you need proof, and none ofho things were manifested. there aappropriate way to challenge things through the ur with edee, if you lose, yoacpt the results, that has been the nation's experience in the court is well familiar with that. >> thank you. . >> justice sotomayor. >> a stable democratic society needs the good faith of its public officls correct? >> absolutel >> that good faith assum tt they will follow the law. >> correct. >> putting thatside, there is failsafe system of government. meaning, we have a judicial system that has layers and layers and layers of protectn in the hopes that the ioct will go free. we fail routinely. t we succeed more often tn not.

in the vast majority of cases, the innocent do go free. sometimes they don' and we have some postconviction remedies for that but we still fail. he executed innocent people. having said that, justice alito went through step-by-step all of the mechanisms thatou potentially fail. in the end, if it fails complete i is because we have destroyed our democracy on our own, is it? >> it is and i think there are additional checks in the system. a separated power system was designed to limit abuses. one of the ways in which abu are limited is accountability wiin the criminal law, but the ultimate check is the goodwill an faith in democracy and

crimes that are alleged in this case that are the antithesis of democracy -- >> an encouragement to believe words th he been put into suspicion here, that no man is above the law, either in his official or private acts. >> i think that is an assumption of the constitution. >> justice kagan? >> i want to go through your framework and keure i understand it. first, othsmall category of things that y s have absolute protection, that they are core executive functions. what are those small cators? >> pardon power. vito. >> vito. foreign recognition. appointments. congress cannot sayouannot appoint a federal judge who hasn't received aertain diploma or hasn't achied certain age. there are a few othepors. >> is commander-in-chief?

>> commander-in-chief is on the list, t i want to add to my answernthat congress has substantial authority in the national security round. itlares war, raises the army. >> tt may be viewed in the set of functions that nobody has it over. >> now in the nextatory where we have left the core set behind and we are the world of oicl actions where you say there are various statutory constrti rules that migh come into play. could you veharacterized those as something dfent from saying the statute doesn't say the president therefore it doesn't apply to the psident? >> that's right. >> i wanted to give you

opportunity to say how that would look, how that anys would look in a given case and in the course of responding to that, i'm sort of tnkg of something like the olc opinion, which says bribery, the president can be tried and convicted of bribery why is that true >> that is true because there is no serious constitutional weston that the president needs to engage in bribery to carry out constitutional fns. bribery is a newman aided so it falls outside of anything that could be viewed as inherent in theeeof article two to function. >> do youhink the premise of that olc opinion was that bribery was simply not official or is the premis that the bribery was official an still the president coulbe prosecuted for? >> i think bribery is a kind of

hyid that illustrates the abuse of public office for prat gain that we think our paradigm attic of things that should be nohe to be immune. the public official cannot trt the bride without the ofci power to offer as qd or pro. i guess the pro actually. it is a crime that c oy be committed by public officials who misuse their power. it is one of the things that was most mistrusted. many of e acts chaedn this indictment or that would violate criminal law involve the misuse of officl wer for private gain. >>o if you were to say what the line is in this category, li when it is that the statute should be understood as precluding presidential prosecution and wheit is that the statute should be understood as allowing it, what general prinpl should guide?

t general principles i think kind of emerge from okg at what the office of legal counsel has done. for example, with respect to a fedel statute that prohibited appointmentso cords- courts, the officef galounsel said this infringes on the power to point federal judges. it cannot be presumed tt congress intended to do that because it wod ise a serious constitutional question. thre are categories of ates where the president is in. like the grassroots lobbying statute. the olc wrote an opinion about that and it idor the president or other publi officials to go out io the world to promote tir programs, atan't be what congress intended to prohibit. what it did intend to prohibit is using federal funds to gin up aificial grassroots campaign that gave the appearance of emergi fm the

people that it was really top down. the olc said the president and officials who carry out the president'sandates are subject to that statute so that is a more nuanced one. and those are the expl that i will give you. the third istatute that would permit prosecution for contempt of congres thelconcluded that a good faith seion of executive privileges a reason for not oviding information to congress would preclude prosecution because congress cann b deemed toavaltered the separation of powers in suc a manner. i think olcould have probably gone on to say of congress tried to do it, it would be deemed unconstitutional. not specifically name theat did president. there are only two that do that. so the entire corpus of federal criminal law including bribery offenses, sedition, murder, would all o limits if it were taken to the extent that

some of the questions have suggested. and it does raise a serious constitutional question. if so, to what extent can be carved out individll and there may be some insnc where the statutes here could be carved o and a particular act could be found to be protected. or does the statute across the board in such a wide range of applications, somewhat alous to overbreadth analysis, infringe on the president's poweo we can say that? >> that set of issues seem poant and may be difficult occasionally. they also se n really before us in the way jusceackson suggested earlier. do y tnk they are before us and we should clear it up, here it is? what elseould we do? how could we do -- deal with this?

whether or not there is this absolute immunity. >> i think the court has the discretion to reacth issue. it was not raised in the district court and it was not raised in the court aeals. the analysis wld use to get there is a fuonf a couple of principles. the court has often resolved threshold questionst are a prerequisite to an intellint resolution of the question presented. in a case like unid ates versus grabs the court reached out to decide wheth anticipatory warrants are valid under the fourth amendment before turngo the question of whether the triggering condition f an anticipatory warrant had to be in the warrant. that is one principal. and then a precedent that bears some analogy to this is vermont tural resources agency v. the firstion was whether a

state agenca person within the meaning of the and the second question was whether if the state agency was 11th amendment immunity kicke in, and the court wrote an analy of why it could reach both questions. hing the person question did not expand jurisdiction and it constitutional avoidance to do that. there are considerations that cut against thi for overall governmentities, we are not wild about parties who raise an immunity case that can be presented to a court on appeal and then smuggling and other issues. not to have an expansivee the approach to that issue. but the final thing that d say about this is part of our submission to this court is that the article one branch and the article two braheare aligned

in believing that this ution is an appropriate way to enforce the law. congress by making the law, the current executive by deciding to bring it it is a building block of that submission ith congress actually did apply these criminal laws to official conduct, the court may wisho exercise discretion to resolve that issue. >> i have one last set of questions which has to do with the official unofficial line you heard mr. sour's respoes to justice barrett's qstns and my questions about what he thinks counts as official here's anwh he thinks is unofficial here. i'm wondering what you took from s responses and also how you would characterize what is official and what is not official in this indictment. so, i think petitioner conceded that there are acts that are not official that are alleged in the indictment. we agreed on all of that.

everything else about what he said as official and wt not. organizing fraudulent slates of ecrs, creating false documentation that says i'm an elector, i have beenppnted properly, i'm going to send a vote to congress that reflects thationer won ratr an the mostot and it wastually got ascertained by the governor and his electors were appointed to st votes, that is not official conduct. that is campaign conduct a i think that the d.c. circuit judge lasting casdi draw a appropriate distinction. a first-term president running foreelection can act incaci of office seeker or officeholder. when working with private lawyers and in private-public relations advising to gin up fraudulent slates ofleions, that is not part of a

president's job. >> there is an allegation in the indictment that has to do with the removal of a justice department official. is that core protected conduct? >> we did not think that is core protected condu. i don't think i would characterize that episode quite that way. we do agrt the department of justice allegations were a e of the president's official power. in many ways, we think that aggravates the nature of this offense. seeking as aandate to oust the lawful winr the election and have oneself certified with private actors is a private scheme to aceva private and read for an incumbent president to use his presenal power to try to enhance the likelihood that it succeeds makes the crime in r view worse. in the department of jusce episode, this occurs late in the

election cycle after many other schemes have failed. at that point, the petitioner is algeto have tried to pressure theeptment of justice to send false letters to the states claiming there were serious election regularities and they should inveige who they certified. none of this was true. the department of justice officials all saidhiwas not true, we are not going to do that. athat point, petitioner is alleged to threaten to remove the department of justice officials who are standing by th oath and repcehem with another person who warry it out. we a not seeking to impose crinal liability on the prident for exercising or talking aboutxercising the appointmt d removal power. what we are seeking to impo criminal liability for is a conspiracy to use fraud to subvert the electio means of which was to try to get the justice department to be compci ffent if petitioner were no

successfulnd he had actually exercised to the appointment an removal power and had gone through and those fraudulent letters were sent. it would have made theche more dangerous, but it would not havehaed the crime. >> how do we think about things like conversations with the vice president? if you say it that way, ty would fall under executive privilege. but how does that relate to the tion we are asking here? >> this is>> one of the most difficult questions for the department of justice and i want to explain why that . if war operatingnder a fitzgerald versus nixon lens d looking at this the way we look at things when theris private lawsuit filed against the president, we take a very broad view of what the outer perimeter of official presidential actio is in order to be as protective of the president against private wsuits that has the court ained in nixon versus fitzgerald can be very

deleterious to t president's conduct of business. if we were putting this under a fitzgerald len w would have to answequestion, was he seeker or was he acting in the capacity as officeholder? if you run thrghhe indictment, you can finsuort for those two characterizations and the department of justice has not t d to come to grips with how we would analyze that set of interactions. >> thank you. >> justice gorsuch? >> i wanted cfirm i thought i heard that you thought that the blasingame framework was the appropriatone. >> larlyyes. we aeeith the idea of the distinctio between officeholder and office seeker. we also agree that if it is objectively reasonable w the activities as osof

officeholder, then the fitzgerald immunity kicks in. i think we would look more at the content of the actual interaction in order to make that determination than blasingame suggested on the facts of the case might be propriate. >> can you give me an example of what y have in mind might be appropriate? i'm trying to understand the nuance. >> blasingame, generally ver favorable, pro-government framework that we endorse. not here, because we don't think fitzgerald applies. >> i understand that, bu putting that aside, the diinction between official act and private office seeker, their test is you think good enough for vement work? >> on this one, the department hasn't taken a next step since the blasingame decision, but let me offer a few thoughts that might clarify it the blas decision focused

on objti contextual indications to see whether the president was acting as a campaigner as opposed to an officeholder. i think that that decision can also be and wh the president actually said. let me illustrate that briefly. in one of the interactions between petition and a state official, petitioner is alleged to have said i need you to find me 11,000 votes. i think if you look at that content, it's ptty clear that petitioner is acting in the capacity as office seeker, not as president, and we wou lk at that content. >> but i am just focused on the legal test. i'm not arg any exceptions to it. >> other than off-limits than i woul

>>k. and want to understand on the core immunity for whatever bird use, it seems to me we are narrowing the ground of dispute here considerably. do we look at motesthe president's motives for his tis? i mean, for example, he has lots of war pows,s we discussed, but heig use them in order to enhanceisersonal interests. is that relevant consideration when we are looking at core powers? >> i am thinking of thisas looking at the objective of the activities as opposed to the kind of subjective motive in the sense that your honor sugges. i think there is a lot of concern about saying electoral vote is to be rleed. >> every first-termresident, everything he does can be seen through the prism by critics,t least, of his person ierest

in reelection. so you wouldn't want that, i inyou would say, personal motivation thoug limits with respect tthcore powers. wh respect for powers, we think there are things that can be regulated at all. >> regardless of miv so than any noncore powers is what we are fightingve what role do motives play, then? one could remove an appointee -- first of all, maybe askhis first. is removing an appointee, a presidential appointee a core power or noncore power? >> here i might edo differentiate between the critalole officerhahave been regardeds having a constitial status of being removable at will from the officers were congress does have some regaty latitude to

impose restrictions on removal. >> i understand that. >> putting that asi, appointing a principal officer is a core por. 'm not prepared to say that there is no potential criminal regulation to say you can't do it for corrupt purpos to enrich yourself, for examp. >> bribery, alrit. but motives come into the core power analysis are not, at the fronteard know, and now i am hearinmae. >> think katie might be more appropriate because the department has not had to take a position on exactly how these core powers would resolved as applied constitutional analysis. none is involved in this case. >> i gue 'm wondering -and 'm not concerned about this case is futurenes -- these nonce wers and maybe core

powers were a president is acting with at least part personal interest in getting reelected, everything hdo he wants to get reelected. if you a aowing him motive to color that, i'm wondering how much is left of eitherheore or noncore powers. >> would be fine with carving that out and deeming that to be something that is intrinsic in our electoral system. we are not talking aut applying criminal law to somebody who makes an announcement that this program ll be good for the united states and somebody could come along and say well you really did it to geteected. leaving aside whether any event violates a criminal law, let's assume that it does. i'm doubtful that it does because i don't think criminal laws generally operate on motives as opposed to objectives and purposes, but -- >> intention aside, intention is

emotive andmotive is intention, salute leave that aside. >> putting that aside, that really to me falls in a very different category, and it is also -- >> there are some movethatre cognizable and he that aren't. is awkward when we look back at the injunction of the early cases. you can't enjoin a president. you can hold him in contempt. for sure. >> can i try one more time to clif >>t didn't matter what the president's motives re we are not going to look behind it. same thing with nixo we said gosh, that is something courts shouldn't get engage in because predes have all manner of motives. and again, i'm not concerned about this case, but i am concerned about future uses of the criminal law to target

political opponents based on accusations about their motives. whether it iection or who knows what corrupt means in 1512 , wdon't know what that means. but the dangerousness o accusing your political opponent of having bad motives, if is enough to overcome your core powers or an other lims, reactions, thoughts? >> you're raising a very difficult question. that is the idea. testing the limits of both de arguments. and something i d't normally say, that is really not involved in this case. [laughter] we don't have bank political motive in that sense. >> i appreciate that but you also appreciatehat we are writing a rule for the ages. >> and i think i would start by look the statutes.

seeing what restrictions they do place on the president's conduct. for example, the statue that rirought to the feet the lawful function of the united states. statute defines what the has to have in mind.defendant has to be to defeat something the united states is doing and it has to be by deception. i don't think that gets us into und of motive-hunting in the area where we are as concerned as the corpo about doing something that would undermine the pncy and the executive branch. anay have different views on the cla and the scope of that statute. i think if report does interpret corrupt as involving a consciousness of wrongdoing and elevates that the consciousness of illegality, and we are in a fferent r wanting to get reelected is no an illegal motive you don't have to worry about prosecuting presidents for that. >> thank you. >> justice kavanaugh?

>> as you' iicated this case has huge implications for the presidency, and the future of the presidency, for the fur of the country, in my view. yoreferred to the department a w mes as having supported position. who in the department? the president, the attorney general? >> the general the united states. part of which the way in which the special counsel functions is as a dontf the department of justice, that we reach out and consult and on a question of this magnitude that involves equities that are far beyond this prosecution, as the questions t court. >> so the socir general. cond, like justice gorsuch, i'm not focused onhe hearing now of this case. i'm very concern aut the future. i think one of the court's biggest mistakes was orson vs. olson.

i think that was a terrible position for the presidency and for the country. and not because there were bad peop a independent councils, but president reagan's ministration, president bush, president clinton were really hampered, in their view, all three, by thinpendent counsel structure. and what i'm worried about here is, let's relaxrtle two a bit for the edof the moment. i'm worried about a similar kind of situation applying re that was a prosecutor investigating a president in each oth circumstances, someone picked from thopsite party, current president, usually was have to work. anthe fairness of a process must be judged on the basisf what it permits to happen, not what itroduces in the particular case.

you've emphasized many times regularity of the department of justice. and he said, and i think this apie to the independent counsel system and can apply if presidents are routinely sje to investigation going forward. one thing icertain, however, it involves investigating and perhaps bus getting a particular individual. can mine -- what would the reaction be if in an area not coverebyhe statute, the justice pament hosted a public notice inviting applicants to assist in an vestigation and possible prosutn of a certain prominent person? does this not invite with justice jackson described as picking the man andnsting the law books or putting investigats work to pins and effects on him? to be rehe investigation must relate to the area criminal ofns testified by the statute. nothing prevented from bng very broad. i paraphrase at the end because

i am referring to the jues that is the concern going forward, is thathe system when former president are subject is going to cle back and be used ait the current or next president and the president after that. all that, i want you to try to allay that concern. why is this not orson v olson redux if we agree with you? >> first of all the independent nt regime did have many structural features that emphasizedndependence at the pee of accountability. we don't have that regime now but even under that regime i think if you looked at lawrence walsh's report on iran contra, that was a veramental point for the court to consider.

judge walsh said i investigated esatrs, the proof did not merely come close to establishingrinal violation. through the independent counsel era, without these prosecutions having gonoff on a runaway train. >> i think president reagan, bush, and clinton whether rightly or wrongly thought contrary to what you justai >> i thinkobody likes being didn't result in the kind of it vindictive prosecution that i think yourons raising. we have a different st now. i think there was a conseus throughout washington that there were flaws in the independent counsel syem we now are inside the justice department withl accountability resting with the attorney general, so the special counsel regulation now doesn't operate the way that the independent counsel regulations do.

this corpora he something to say about it, i think, if it were reviv. i'm t sure anybody is in favor of that. >> i wasayg the mirror image of that isneay someone could perceive it. t i take your point about the different structural protectio internally. like justice scalia said, i do not mean to suggest anything of the sword the present case, we are not talking about the present ca. i'm talking about the future. another point, you tked about the criminal statute. it's very ey to characterize presidential actions as false or misleading under vague statutes. president lyndon johnson, statements about t vtnam war say something is false. turned out to be false that he says about the vietnam war. 371 procuon after he leaves office? >> i think not. this is an area that i do think merits some serious and nuance consideration.

statements that are made by a president to the public are t really coming within the realm of criminal statutes. they've never been prosecuted. i ale that the court can say what if they wereanthen i think you get wt i would regards a hard constitutional question. i would probably guide the away from trying to resolve that today, although i do think it is very different from our case and distinction will in important but you are dealing here with two branches of government that have aarountntest in the integrity and eem of their interactions with each other. on the one hand, the preside of course should be very free to usuay send his cabinet officials and some cabet officials to cs to provide them with the informaeeded to enact legislation and to make national policy. we are very concerned about anything thatou trample that. on the others have the equation,

congress has a compelling interest in receiving accurate information and t very least, informati tt is intentionally and knowingly false. that would pollute the -- >> how about president ford's pardon? very controversial in the moment. hugely unpopular, probably why he lost in 1976. now looked upon as one of the better decisions c presidential history i think by most people. if he is thinking about if i grant this pardon to richard nixon,ou i be investigated myself for obstruction of justice on the theory that i'm interfering with the investigation ofrd nixon? >> so this would fall into that small core area that i mentiod to justice kagan or justice gorsuch of presidential possibility that congress cannot regulate. >> how about president obama's drone strikes? >> if the office of legal counselked at us.

carefully determined that number e, the federal murder state does apply to the executive branch, the presiden would be personally carrying out the straight, but the aidin abetting laws are broad and it is deternethat a public authorit exception that is built in stus and that applies particularly to the inverter statute talksbo unlawful killing not apply to the drone strike. so this is actually the way that the system can function. the department of justice takes it runs through the analysis. very carefully with established prcies. it documtshem, explains them, and then t psident can go forward in accord. >> thank you for your answers. >> i want to pick up with that blic authority defense. i'm looking at that llc memo at you cited in your briefs. he describes the public authority defense setting e model penal code with a few

different definitions, but i will just highlight this one. justifying conduct which is required or authored by the law defining the duties or functions of a public officer, the law govni the armed services were lawful conduct of war, or any other provision of law imposing a public duty. that sounds a lot like dividing a line between official and private conduct. i think it is narrowean i recognize it is in his defense, but when we look t definition of it, are you acting within the scope of authority conferred by law, dihaing a duty conferred by law? i thinit is narrower than nixon and fitzgerald, that is what it sounds like to m do you agree or disagree? >> i certainly understand the intuition that we act outside of your lawful authority, you kind of been no longer carrying it out. i don't thinth that quite works for presidential activy.

the only way he ulhave implemented the orders is by commander-in-chief authority over the armed forces or his authitto supervise the executive branch. those sm ke poor executive asked to be. there isuch a possibility as an unlawful executive act. >> i'm not su inderstand your answer. it seems to me tt your brief today, when you referred to the public authority defense, that is one ofheuilt-in proteconof why community is not ceary. e in some of these instances, when the president takes suchction that the courts asked might as result in criminal prosecution, you say well he could raise this public authority defense? i'm saying isn't th plic authority defense, if raised, doesn't it sound like a dens that says well, as autd by law, i to discharge dysfunction? >>ndherefore i acted lawfully. >> therefore acted lawfully and not criminally liable.

did that involve a look into motives, kind of like what justice gorsuch was asking? could you say i was acting within the scope of my authority by granting aarn, removing a cabinet officer, but then the public authority defense might not apply because you had a b motive in doing so? >> i don't think soice barrett. i think and operate on objective facts disclosed to counsel, in this case the depame of justice, and it is an objectively validefse, a complete defense to prosecutio thing that strikes me as different, for one thing that is obviously different between the public authori defense and immunity and the interlocking appeal and having it resolved at the outset. what would be so bad about having a question like that reltt the threshold of having the and immunity? thsame time to question they could be brought up as a threshold and then it interlocking appeal would be a freedom from standing trial, but

not a get out offree card. >> i understand that. if t crt believe that that with the appropriate way craft presidential protections, it has the authority to craft procedural rules that implement its article two concerns. that said, public authority, we are calling a defense, but under many state actually an exception to liability self. what y a really talking about is trying the general issue. generally, in criminal cases, evenas that involve first amendment issues like threat statutes, the jury is the determinant of facts. and i have a little bit of difficulty with the idea of trying the whole public authority issue separately to the judge and having that go up on interlocking aeal before you could get into a criminal case.

i would rather that tn total absolute blanket immunity that takes away the possibility of criminal prosecution, even if it is a core violation of the statute of attorney general advice and has no overriding public authority. >> i wasn't necessarily proposinacally treating it as a defense that was going to be outside and subject to apali was proposing what about and immunity doctrine a true from the public authority defense of the departmenof justice that they think would otherwise pl so just go with me on that for a minute. why would it be bad for it not to be a jury question? there it seems to me some of these concerns would be exacerbated by having i go to a jury rather than a judge. >> i think some of themre judge questions that could be

resolved in the face of the indictment. if the department of justice ever returned an indictment that said tuance of this pardon or this series of pardons constituted obstruction of justice, i have a little difficulty hypothesizing it, but a motion to be made on the face of the indictment this article two includes congress from regular things activities, the died needs to be dismissed. if the court wished to atth that kind of a rule interlocutor he appeal, thawod be a leer safeguard than the one that my friend is proposing here. otr nds of defenses really iersect with the general much greater timseng how the courts could implement that. with every cost into trial? yes, there is no perfect system here. we're trying to design a syste that preserves the effective functioning of the psincy

and the accountability of a former president under the re of law. and the perfect system that calibrates all of those values probably hasoteen devised. i think that the system that we veorks pretty well, maybe it needs a few ancillary rules. even different from the radical proposal. >> i agree. that me ask you state prosecutions because if the president had sod of ty that is implicit in article two, and that immunity would protect him from state prosecution as well. a lot of the protections were talking about our internal protections th federal government has, protections and the partneice which obviously are not appe at theany state and local jurisdictions across the country. what do you have to say to that? >> the court would run a supremacy clause analysis that would probably start with basic principles like mcculloch versus maryland

the states do notthe authority to better ashburton federalumptions and then would f move through and when nagel where the court said that a state murder prosecution of a federal official guarding the supreme courice and who fired a shot was no permissible. if the court thought that you eded a more categorical rule for the states, i think the supremacylae certainly leaves it within the courts prerate to determine that the president, unlike all other officials, deserves more of a robust federal defense than what i have just devised. >> but it would still be a defense. that is my poin it is one thing to say the president, they are not going to be these psecutions that were politically motivated that might be the danger of the system. that might not car the day, but that is a concer totally different when you take

it outdehe department of justice and its structures and then you throw it out elsewhere. the idea of an immunity i think has a lomo purchase if you are talking about something that protects the former president from standing trial at a state and local level. >> so i don' that you would have to design aysm in which the president would he to stand trial at the state and it iceainly within the courts autri as a matter of supremacy clause lawo nd and immunity. but we have been talking her about the distinction between official acts and private acts. that will have to be determined by some rtf a process. any immunity defense that the cot announces can still be met by a staertion tha we are prosecuting pr conduct, you argog to have to have some process. hangome legal process is not a reason to castsi a nuanced system tt actually looks at what protections are necessary

as opposed to what would provide the absolute maximum insulation for former president, even if we acknowledge that it is highly prophylact. >> totally agree and it wasn' contrasting the absolute immunity rule, but saying there is some sort of consequence were making immunity. and since you bring up the private act this is my last question i had asked on page 46 and 47, you y even if the court were inclined to recognize some immunity for a former president's official ac, e indictment alleges the potenal private conduct and you said that the private conctould be sufficient. the special counsel has pressed some ccern in wanting to move forward. the normal process would be for us to remand if we decid that there were some official acts anto let that be sorted out below. it is another option for the special counsel to just proceed

based on the private conduct and drop the official cdu. >> two things on that. first of all, there's really an grated conspiracy here that has different components as alleged in the indtmt. working with private lawyers to achieve e goals, and as i sai before, reachg r official powers to try to make the conspiracies more likely to succeed. we would likeo esent that as an integrated picture to the jury so that it sees the sequcend the gravity of the conduct and why each ste occurred. that said, if the corporate to say that the elector sem private, reaching out to state officials as a candida i private,ryg to exploit the violence after january 6 by calling senators and saying please delay the certification preeding is pvate, we still inkinds write what my friend id that we could introducehe actions of the justice

department, the effort pressure the vice president furtheeventiary value as filling the defendant's knowledge and intent and we would take a jurynsuction that would say you may not impose crimina culpability for the actions that he took, however y m consider it insofar as it bears on knowledge and intent. that ithe usual rule with ected speech, under wisconsin v. mitchell. my friend analogize this as a spch for debate clause but we don't think the speech for debate causes y plicability here. it is a very explicit constitutialrotection that says senators and reestatives shall not be questioned in any other place, so it carries an evidentiary component that is above and beyond whatever official immunity he is seeking. and the last thing i would on this as we think that the concerns of the use of evidence of psintial conduct that might othersee official and subject to executive privilege is already taken care of by it states v. nixon.

that balances the interest and comfort- company geology against the need of the judicial syem for all available facts to get to the truth, and once that has been overcome, we submit the evidence can be used even if culpability can't rest on it. >> just to pick up where justice baett left off, i think i heard you say that even if we dede here a rule that is not the rule that you prefer that is somehow separating out private from acts and saying athat should apply here, there is sufficient allegations in the indictment, in the government's view, that fallnto the private acts bucket that the case should bellowed to proceed, correct? because in an ordinary case, it wouldn't be stoedust because me of the acts are alleged immunized, even if people agree atome are immunized. if there are other acts that aren't, the case would go forward.

going back to the clear statement argument, my undetaing was that when a charged criminal statute is read narrowly in e esidential context did not apply to the president, a constitutional questi ibeing avoided. you are doing that to avoid having to deal with the constitutional question. what is the constitutional question that is being avoided? >> this is just an application of this court ordinary cotruction of criminal statute atf there is an available interpretation that would avoid a serious constitutional question, the court preference is to -- >> my understanding is that what is being avoided i situatioishe question of whether a former president c be held criminally liable for doing the alleged act that is

being asserted in that statute consistent with the constitution. has gotten elements in it and we are saying if this statute and those elements applied to the president's conduct in the situation, we have to answer the question in the president be held liable consistent with the titution for that? >> the first step in the analysis, there's no ambiguity in those. similar words, any person applied to government officials. >> let's just assume. that we are avoiding ag to get constitutional question if we do that in the ordinary case,nd what is confusing to me about this case is that we are not being asked to avoid the

tutional question. in fact, the question of whether or not a president can be held liable consistent with the constitution or does he have immunity is the question that is being presteto us. so i don't understand how the clear sta kind of analysis even works. it seems completely title logical to for us to all the esidents cannot be prosecuted unr any criminal statute without a clear statement from congress to avoid the question of whether or not the constitution allowth to be prosecuted. you have to have a reason, right? you have to have a rationale for applying for clear statement le. >> thereould have to be some rationale that is not evident in either the existing doctrine or the text. just one data point for the court in thiin about how the clear statement rule works, a case about gratuitie and the court is probably familiawi,

justice scalia wrote an opinion for anousou in which he used a hypothetical about what would happen if the president reived a sports replica jersey at a typical white house event, atiolate section 201c? the court offered a construction that it had to be because of an official a tavoid that problem. i think if there was such a well-received understanding that presidents are not included in general federal criminal law less a president is specificamed, which he is not, justice scalia would have thought of that and some member of the court would have reacted. and none did. >> let me go on to ask about what you take the partition's sion to be in thica. becauswead a lot of talk about drawing the linejuice kavanaugh, justice gorsuch suggested that we should be inking about first, we hav private vs. official.

and then within official we have some thing that core acts vs. her acts as we try to figure out at what level the president is gngo have immunity. but i took theioners argument in this case not to be inviting us to engage in that kind of analysis. i thought he was arguing that alcial acts did immunity, and so i didn't understand us to be having to drill down on which official acts do. mquestion is why isn't it enough for theurses of this case, given with the petitior has argued, to just answeth question of whether all official acts get immunity? >> that is enough and if the court answedhat question the way that the government has submte that resolves the case. wa to make a clarification that i may have left the court with some uncertainty about.

e official act analysis that my friend is talking about is the fitzgerald vs. nixon out of perimeter test which is extremely protective t president. it is saying that everything the president does is a target for lawsuits. that is not a great thing and therefore ty e all cut off. >> anything that is official in thour perimeter is not suecto liability. so we don't have t go well, we have an official, which within that might be subject to liability? not on the theory of absolute immunity. >> on his theory, everything is protective. on hours, there is no immunity but this is wher i've detroit distinction. there are as apply constitutional challenges that you run through the youngstown framework and isourt's customary method of analysis and you determi wther there is

an infringemen article two. >> so what you're saying is even ife ject the absolute immunity. it is not as though the president doesn't ha opportunity to make the kis arguments that arise at the level of this particular act or articular statute as a problem in retrospect? i think i heayosaying we should not be trying to, in the abstract, set tse boundaries ahead of te a function of the blanket immunity to allow each delegation to be broughtnd then you would decide in that context? >> yes, with the additional note that petitioners never made that argument and think it woulbe up to a district court to decide whether to go tharoe at this point in the litigation. you've put all of your eggsn the absolute immunity basket. >> and iwe see the question prented is broader than that and we do say let's engage with

core official and not core and try to figure out the line, is this the right vehicle to hammer out that test? i mean, i had understood tha most if not all of the algaonser, there's really plausible argument that they would fall into court vs. not su tt they are immune. >> we don't think there are any core acts that have been alleged in the indictments that would off-limits as a matter of article two. >> so w are going to do this kind of analysis, t to figure out what the line is, we should probably wait for a vehicle that tually presented in a way that allows us to test the different sides of the standard that we would be creating, right? >> i don't see any need in the -- this case the court to embark on that analysis. >> the final set of questions th iave has to do with what i do tak as a very legitimate concernbout prosecutorial

abuse, about future presidents being targeted for things that they have nen office. i take that concern, i think it is a real thg. but i wond wther some of it might also be mitigated by the thating administrations have a self-interest in protecting the presidency, that they understand that if they go after the guy, soon they are going to be a guy and they will have created precedent they will be problematic. so i wonder if my comment on whether so of the caution from the ju department and the prosecutors and whatnot comes from an understanding that they will soon be fpresident as well. absolutely, and i would locate this as a structural argument that is built into the constitution itself. the executive branch, as court knows, as executive branch

interest that is at times asserts oppn to congress, so that the proper functioning of the president is protected, and i believe that at value would be operative and use operative in anything as the mentis discharging a former president th crime. >> and i would ao y i think in ask you to comme, presidents are concerned about being investigated and prosecuted, and it chose to some nt their ability to do what they want in offic that is a concern on one side. but can you comment on the concern about having a president unbounded while in office? a president who knows that he does not ultimately have to follow t l because there is nothing more than lical accountability in terms o political impehmt?

from ultimately corruptinor concealing documents, from supporting othersmmit perjury, bribing witnesses or blic officials. it goes on. the knowledge theyavno criminal accountability. i see that as a concern that is at least equal to the president bein worried, so wried in his ability to function. so could you please talk about those competing concerns? >> justice jaconi think it would be a change that no president has had or has needed. i think we have also had a rftly functioning syste that has seen occasional episodes of presidential

misconduct. e nixon era is a paradigmatic on the indictment in this case alleges another. for the most part, i believe that the legal regime d e constitutional regime that we have works, and to alter it poses more risks. >> thank you. re? havnothing further, your honor. >> the case is submitted. >> the honorable court now adjourned until thursday, the ninth of may at 10:00. announcer: and the justices wrapping up oral arguments in the presidential immunity case concerning former president donald trump. the case will determine whether the former president will be able to avoid criminal prosecution for his alleged role in trying to overturn the results of the 2020 election. during the hearing, justices

cited previous cases of presidential immunity. justice kagan highlighting that the framers of the constitution did not add an immunity clause in the constitution, as pointed out by cnn's caitlin colditz. this evening at 8:00 eastern, we will take your calls and comment and show today's oral argument. taking a look at some of the sights and sounds outside the court where protesters are gathered. ♪

>> let it go. let it go. let it go. ♪ ♪

>> c-span's cameras outside the supreme court. we are expecting if we do see or hear from some of the lawyers who argued the case, we will make sure to bring you their remarks in an immunity case dealing with former president donald trump. the question before the court, whether mr. trump can be tried on criminal charges that he conspired to overturn the results of the 2020 election. just getting a look outside the court right now with some of the onlookers that were protesters as well. the outcome of this will determine not only whether donald trump's trial in washington, d.c. before a u.s. district court can go forward, but also whether the former president trials in florida and georgia can proceed. again, we could see lawyers here who argued the case to reporters outside the court. watching live coverage here on c-span.

♪ >> vote donald trump!

♪ >> just getting a look at the sights and sounds isaiah the supreme court after justices heard trump v. united states looking at immunity claims by

former president donald trump and this evening at 8:00 eastern will take your calls and comments and we will show today's oral arguments in its entirety. the former president was a new york criminal court for his hush money trial decision as to whether or not he violated the court issued gag order being announced today. shortly before court started, the former president met with supporters at a construction site and talked about the argument at the supreme court today. >>