>> john i have to leave it there. on the washington journal, tomorrow morning 7 a.m. eastern time, we are going to continue this conversation with all of you. join us then. dial in, if you did not get in tonight we want to hear from you tomorrow morning. 7 a.m. eastern time here on c-span. now we're going to bring you back up to the court from earlier today. in this case of whether or not a former president has immunit from prosecution. >> we will hear argument this morning in case 20 39 39, trump rsus united states. >> mr. sour? >> mr. chief justice and may it ea the court, without presidential immunity om criminal prosecution, there can be no presidency as we know it. for 234 years of american history,o esident was ever

prosecuted for his official act. the framers of our constitution viewed an energetic executive as essential to securing liberty. if a president can be ard, put on trial and in prison for his most controversi dision as soon as he leaves office, that looming teawill distort the president's decision-making precisely when bold and fearless action is most needed. every current president will face de facto blackml d extortion by his political rivals while he is still in office. the implications of the court's decision here extend far beyond the facts of ts se. could esent george w. bush have been sent to prison for stcting an official proceeding or allegedly lying to congress to induce war iir? could president obama be charged with murder for killing u.s. citizens abroad by drone strike?

could president biden someday be chgewith unlawfully inducing immigrants to enter the country illegally for his border poly. the answer to all the questions is no. prosecuting the esent for official acts is an innovation with no foothold in history or traditn d incompatible with our constitutional structure. the original meaning of th executive vesting clause, the framers understanding d unbroken historical tradition spanning 200 years and policy considerations rooted in the separation of powers all counsel against it. weome the courts questions. >> mr. sauer, to your last point koba could you be more precise? -- your point. could you be more precise? >> it's rooted in the vesting clause. >> how does that happen? >> the source of it is that the

executive vesting clause does not include only executive powers laid out there and but encompasses the powers originally understood to be included therein and marbury agnsmadison itself provides evidence this meant communit -- this kind ofmmunity that protects the president's official acts from scrutiny sitting in judgme othe articles. that matches the original understanding of the executive de >> how exactly would we determine what an official act is? >> i point theou to two cases for that. fitzgera ainst nixon is the best guidance the court gives, the outer perimeter test and the court engaged in alis that look at the level of specificity at which t as are described and that case which was a civil case.

>> let's say the official act is appointing ambas in the -- and the president appoints a particular individual to the country but it'in exchange for a bribe and somebody says i will give you $1 million if i am made ambassador. how do you analyze that? >> that would follow this discussions in brewsr at bribery is not an official act which matches a common-law background. the way the court distinguished is these are not official acts. it would be essentially unrestricted will fo the congress. >> accepting the bribe is not an official act but appointing an ambassador certainly within the offici rponsibility of the president. how does your official acts the official acts ordeor boundary come into play and it's going to be offialssuming the president is innocent.

the question is whether he will be found innocent or guilty. >> 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 offial >> you say we are prosecuting because you accepted $1 millio as -- are you supposed to not sawh it's for because within the president's official die >> there would have to be an invidual source of evidence for that. this indictment charges what this court describes as un to scriptable powers by the president. they are purporting to regulate the exercise of the president, things like hiabity to speak directly to the american public and core erces of his authority under the recommdaons clause.

the measures he thinks necessary and expedient. you have an inctnt of this case that goes of the heartland of the psint's powers. it alleges a series of official tsnd tries to tie them together by saying there w 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 concng viewed as an -- is appropriate that there is something so fundamentally evi that they have to be proteed against. i think and your answer below, i will give you a chance to say if you stay by it -- if the esent decides that his rival is a corrupt person and he

orders the military or order someone to assassinate him, is that within his official acts for whichean get immunity? >> thacould well be an official act. >> it could and he's doing it for personal reasons. he's not doing le president obama's alled have done it to protect the country from a terrorist. he's doing it for personal gain. isn't that the nature of the letions here? that he's not doing them -- these acts for furthan of an official responsibility. he's dog for personal gain. >> i agree with the characterization in the dictment and that confirms because the characterizati i that the series of official acts -- >> community says even if you --o because immunity says

even if you did it for personal gain, we willolyou 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 does that come from? there e ica who tell us the founders actually talked about whether to grant immunity to t esent. in fact, they had state constitutions that gnt some criminal immunity to governors. and yet they didn't take it up. instead, they passed an impeachment clause that sically says you cannot remove the president from officexpt by a trial in the sena b you can impeach him after. or you can impose criminal liability. we wlde creating a situation in which we would be saying,

this is what you are askg to say which is that a president is entitled not to make a mistake but more than that. thprident is entitled for total personal gain to use the trappings of his office, that's what you are trying g us to hope. without ci criminal liability. >> i would say three things in response. the doctrine that immunity does not turn on allegedly prop motivation is something this court has reaffirmed in at least nine or 10 -- >> absolute immunity but qualified immunity says whatever act you take has to be within what a reasoblperson would do. i'm having a hard time thinking that creating false document that submitting false documents,

that ordering the assassination of a rival, accepting a bribe and countless other laws that could be broken for personal inthat anyone would say that it would be reasonable for a president or any public official to do that. >> this was answered very persuasively in fitzgerald that this particular act would be done for an unlawful purpose or was unlawful could be in every case and therefore if that was the doctrine that the allegation of improper purposes what deprives the objective act or of immunity that immunity would ha npurchase and that's reflected in many cases. >> isn't the work of the oper motive at least in the absolute immunity context to tell us what our official acts and what are not i understood that even -- first of all, your ayour principal sion.

you want the same kind of dori we've applied in other contexts when you say in official has absolute muty. my understanding is when we say that, we mean r eir official acts. is that right? >> yes. >> so any official acts in that the real decision-making from a court standpoint is whether or not sometngs an official act or not, correct? >> that's an important determination. >> that's e determination in the absolute immunity world because y determine it's an official act, then the principle is y g immunity for it, correct? >>hat is correct. >> my question is how do y determine or maybe jti thomas, how y determine what's in official act? we talk abt e kinds of scenarios justice sotomayor brout , one could say that when the president is using the trappings of his office to achieve a 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, that allegation that this was motivated by an improper private purpose could be made in every single case. >> i understand that but it would have to be made just even if we had the doctrine of absolute immunity, that same allegation a t facts related to it would come in because the person would be arguing that he was nong in his official capacity and not doing something official, he was doing it personal, correct? >> agree but the objective -- the point i would make i in fitzgerald, they emphasize that would result in an intrusive discussion or dermination of the presidents personal motives every officl act. this is not just in the case of the president. >> another quick question before my colleagues taket er -- at the beginning of your

analysis when you're giving your openinstement, you were talking about, you suggested the lack of immunity and the ibility of prosecution in the presidential contacts is like an innovaon i understood to be the status quo. i undersodhat every president from the beginning of messentially has understood that there was a threat of osecution if for no other reason than the constitution suggests they can be prosecuted after impeachment, that the office of legal counsel had said forever that presidents are am to a threat of prosecution and they have continued to function and do their job and do all thehis presidents do. it seems to me that you are asking now for a change in what the law is related to immunity. >> from what benjamin franklin said at the constitutional convention which reflects the founders original undetaing

which is at the constitutional convention, benjamin fralisaid his three -- this provides one example only of a chief magistrate who is subjecto iminal prosecution and everybody cried out against that. >> i understand but since benjamin franklin, everybody has thought including the presidents who held the office athey were taking this office subject to potential cmil prosecution, no? >> i see the evidence going the other way. brought immunity.dison discusses >> what was up with e rdon for president nixon? everybody thought that presidents couldn't be prosecuted, than what was that about? >> he was under investigation at thti with official and private conduct. eryone understands that since president grants carriage riding incident, everybody has understood that the presn be prosecuted.

-- the president can be prosecuted. >> there seems to be common ground be just between you and your colleague a t other side that no man is above the law and the president can be prosecuted after using his office for his private conduct, is that right? >> we agree with that. >> as we have been exploring today, the question becomes a h to segregate private from official conduct that may or may not enjoy some immitand i'm sure we will spend a lot of time exploring that. in blasingame, the chief jusce expressed some views about how to segregate pratconduct for which no man is above the law from official acts. do you have any thoughts about the test they came up with there? >> especially if it's understood through the lens of a pate opinion is a persuasive test. it would be a great source for this court to rely on.

it emphasizes the breadth of that test and talks about how tis that are plausibly connected to the president' official duties are official acts and it emphasizes but close --f it's a closed case or other considerations that should be treated as immune. those are the asctof guiding this. >> ile open in that case the possibility of further proceedings and trial. >>xaly right and that would be a natural course for this court to take in this case. the court should and reverse the holding of the dc circuit that there nthing is official acts -- >> youou agree further proceedings would be required? >>h's correct. i would point to anderson versus creighton wherthe is two stages of proceedings. ere is looking at the indictment and the chain documents and see if alleging official acts anifot, determine ercould be a factual proceeding under

mitchell against foresyt would have to occur. >> go ahead. >> you began what you believe that immunity from crina prosecution is essential for proper functioning of the presidency. myuestion is whether the very robust form of immunity you are advocating is reallyecsary in order to achieve that result. just to take one possible alternative, suppose the rule were that a former presint cannot be prosecuted for official acts le no plausible justification could be imagined for what the president did, taking into account history and legal precedent and the information that was provided to

the president at the time when th act was taken. wod at be sufficient? or why would it be in for sufficient? >> that might be a much better rule that what emerged ith lower course. -- the ler courts. we think it would be insufficient because the law is talking ouusing the presidents motives and intrusive consideration of the presidents motis transforming acts official and unofficial would come into play. ce you can make that allegation, then you' oned the door. you no longer have a clear rule. you have a determination in every single case. >> what if it 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, that may not be different than what we propose in court today.

>> blasingame had to do with the different dreaate and official conduct. >> that's what i understand. >> this would apy d it's a possibility but i don't know whether it's a good or bad idea or can be devefrom the structure of the constitution or any other source. but this would be applied in a purely objective grounds. when the president iok an official power in taking the action that is at issue. >> the reason i think of blasingame is it talks about an objective context with specific dermation to winnow out what's official and priva conduct. >> i'm sorry, if i unde justice alito, he suggesting not that. he is 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'wrong. >> that was the question. >> that i think would be a supeorule then what is in the categorical file that emerged in the trial. >> i'm not quite sure why he use the word plausible because tha ems to negate, might is well -- might as well give absolute if you say plausible because anybody could argue plausibility. we do't even require plausible, we require reasonable and qualified immunity. >> one might argue that it is not plausibly legal to order seal team six and i't want to slander seal team six because seriously they are honorable. they are bound by the uniform code of military justice not to

obey unlawful orders. i think one could say that it's not plausible that that is legal, that the action would be legal. i'm sure you've thought of lots of hypottils and i'm sure you have as well where president could say i'm using an official wer and yet the president uses it in an outrageous manner. >> that may well be anbjective determination. >> apply it the allegations here. what is plausible about the president assisting in creating a fraudulent slate of elecra candidates. assuming you a sect the facts of -- you accept the facts of the complaint on their face, is that plausible that atould be within his rights to do? >> absolutely, we've had historical prede with

president grant sending federal troops to mississippi to make sure the republican electors got certified in those two cases which delivered the election to ruerrd b hayes. the notion that that is implausible, can't be supported based on this indictment -- >> knowing that the slate is fake and they weren't actually elected and they weren't certified byhetate, he knows all those things? >> the indictment itself alleges anffts of word label to the affixes the word label to the word fraudulent. that's a complete mixed aracterization. it was there no deceit aboutho had emerged from the convention and this was done on an alternative basis. i want to address the higher level point whh that there is a whole series of structural chksther than criminal prosecution that are designed to deter these kinds of olaish

scenarios or obviously illegal things. that's been viewed in this court's opio-- >> where do you think the d.c. circuit judge wrg and how it -- went wrong in how it determined what was official versus what personal? >> i read the opinion below in thisas it does not matter the logic of their opinion. there is no immunity for official acts and therefore that is the end of the story. i n't really think they went wrong in blasingame when the engaged in the same termination with respect to what's official and what isn't. there we agree with most of what that opinion says. >> for some official acts that are not within the article to -- the article ii exclusive power so official acts but not within the article to exclivpower, even for those, i assume you would think that a clr atement has to be required, clear statement in the ate covering the president

if the official acts are going to be criminalized. >> obviously, at the highest possible level when it comes to the unrestricted wl wers in this indictment -- >> i'm assuming the exclusive powers are walled off and can't be prosecuted. there e lot of official powers that are not exclusive to thprident under article two authority. r those, i understood you to say at a minimum, there would need to be a clear statement in the statute referencing the president so that thprident is on notice and can conduct himself or herself accordingly. >> that's correct and that would be consistt. >> can i follow up on that? you can see the private act don't get immunity. >> we do. >> in the special counsel brief on pages 46 and 47, he urges us even if we assume or were to

decide or assume there was some sort of immunity for official acts that there was insufficient -- was sufficient private acts meant for the trial -- for the case gback into trial immediately. i want to know if you agree or disagree abo t characterization of these acts as private. the commissioners let that spre ta private attorney and was willing to spread rumors about election results. >> it sounds private. >> he conspired with another private attorney that had the false allegati tsupport a challenge. >> thaal sounds right. >> three private act through attorneys and a political consultant help implement a plan to submit fraudulent eleto obstruct the certification results. >> i believeh's private. >> so those acts you would not disputse were private and

you wouldn't raise a crank -- raise a claim they were official? >> but we would say is officials thgs like being with the meengith the department of justicto deliberate about who will be the acting internal -- attorney general of united stes, comparing cadets committed getting to the public or the senate. >> thank you. >> thank you, counsel and what is the cence in terms of going forward with your acknowledgment that those are private acts as opposed to official acts? >> if you look at the indictment here, there's a buncofcts that are clearly official. there may be allegatnshat mostly relate to what the government has described as private aim or end and the court should address its output remand for a brewster like dermation like what's official and what's privat e ficial stuff has to be expunged from the indictmentnd there has to be a determination of what's official to aga determination. >> if you expunge the official part from the indictntthat's like a one legged stool.

giving somebody money is not bribery unless you get something in exchange. ifhayou get in exchange the -- is to beco t investor of a -- the ambassador of a country, that is official the appointment it's within the prese's prerogative. the unofficial part is i will get a million dollars for it. if you say you have eunge 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 thin oer than the electors allegations. they haven't disputed it if they are official acts but they say we tied together by characterizing it as done in the allegations the court just rerred to by an improper private aim were end that just - or private end and that just

nst loggerheads. the improper motivation is what you look at. >> jushomas? >> 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'dispute the blazing -- the blasingame objective of that. >> in this litigation, did you challenge the apinent of special counsel? >> not directly but we have done so le the florida case and we agree with the analysis prided by attorney general meese and casey and it pntto an important issue. one of their arguments is that we should have thessption of regularity. that runs into the reality we

have here an extraordinary prosecutor early dish -- prosecutori per exercised and confirmed by the senate any time. we agree with that positn.we ag. we haven't raised it yet in this case when it went up on appeal. >> justice alito? >> when you say at the official action be expunged from the indictment, that in itlfould not achieve much unless evidence of those official acts were precluded at trial. is that what you are saying, that prosecuti suld not be permitted at trial to prove the official acts as part of the conspiracies that are alleged? >> absolutely and that's the clear implications of brewster and johnson. >> thank you. >> i'm a little bit confused by that.

guests if you have a scheme to defraud or a scheme to accept bribery, there is evidence fr wch you can infer that screen -- that scheme and one is the appointment actually happened. i's an official act. you wouldn't expunge that as evidence. you would instruct the jury that there iso ability for the actual appointment. the liability is for accepting the bribe. similarlhe, i don't think the indictment is charging that the obstruction occurred solely because of conversatnsith the justice department. they are saying you look at al of the private acts and you look in the conte osome of the public acts and you can infer the intent, the pratintent

from them. i'm not sure that i understand why your problems couldn't be taken care of at trial with an instruction if we believe, if the court were to find and i'm not sure how they could but if it were to find that some public acts could not be the basis of crimin lbility. >> the best thing i can say to that and i think this esnto thchf justice's question about a one legged stool. rooster and johnson in brewster and johnson in subsequent cases essentially say that that this is a one legged stool problem. some of the precions can proceed in that the implication of official immunityhi is dictated in the constitution by the executivveing clause. >> justice kagan? >> to contin oin justice barrett's vein and askoubout some of the allegations of the indictment a wther they are official acts were not in your view. the defendant signed a verification affirming full selection of fraud allegations made on his behalf on a lawsuit filed in his name

against the georgia governor. >> i don't think we've diste that. that is unofficial. same for the defendant calling the chairwoman of the republican nationacoittee asked hetoather electors and targeted states falsely represented that such electors votes would be used only of ongoing litigation and one of the states changed the results of the defendants favor? >> we have taken the positio that that's official. >> why would that be officia >> it's based on theisrical example of president gntnd it's something that was done pursuant to the exci of the core recommendation clause power. >> couldn't he have taken this action just in the status of a candidate? >> t fact that he could have done so doesn't demonstratth he did do so. sed on the allegations, it's clear he did not that this was done in an official capacity. >> the defendant asked the arizona house spketo call

the legislature into session to hold a hearingas on their claims of election fraud. >> absolutely, and official act for presento communicate withta officials attempting to defend the integrity of a federal election and mmicate with state officials and urge them to view what he views as their job uer state law and federal law. that's an official act. >> attempting to defend the integrity of theleion is the defense. the allegation is that he was attempting to overthrow an election. >> exactly right and neither allegation should make a difference as to whether he's -- it's immune. that's extremely strong with this court. >>oes it strike you as odd that your understanding of immunity goes way beyond what olc has ever claimed for a former president? >> the opinions here are stron supporting us because any time a coressional statute got near

touching the president's prerogatives, they said we will interpret the statute narrowly to avoid it. >> that's a diffenquestion. what olc haslws said that sitting presidents get immunity but former president's? no. there might be a different argument made about whether a statute or whether a statute is applied to a particular couc is properly available ait the president. but that's a very dfent argument than the immunity claim that you are making here. olc has definitively not supported this. >> i don't know if i woulpu it that way. don't recall them addressing it but there is the langgef cases like marbury and statements made bjamin franklin at the constitutional conventionstements of george washington talking about the massivri of strife and how that could destroy the vement.

at's what we rely on principally. i cite the olc opinions because if there's any statute that might impact on the president's prerogatives, they interpreted to avoid that. >> if a esent sells nuclear secrets to a foreign adversary, is that immune? >> that sounds similar to the bribery example and likely n immune. if it is structured as an official act, you would have to be impeachednd convicted first. >> what doest an if it structured as an official act? >> i don't know wth that would be an official act. you'd have to apply a diert analysis. >> how about if a president orders the military to stage a up? >> as the chief justice pointed out earlier, there is a whole series of guidin against that.

ucmj prohibits the army from foowg a plane ful uawful act. if one adopts the fitzgerald stthat might be impeached and convicted before he is iminally prosecuted. >> well, he is gone. let's say this president who ordered the military to stage a coup, is no longeprident and he couldn't impeached. he ordered the military to stage a coup and you are saying that's an official act. that's immune. >> i think it would depend on the circumstans ether it was an official act. >> what does that mean depend on the rcstances? he was the president, he is the commander-in-chief. talks to his generals all the time and he told the generals i don't feel likleing office and i want to stage a coup. is that immune? >> if it's an official act, there needs to be impeachment

and conviconefore and -- before hand because the framers knew the risk. >> is it in official acts? is it an official act? >> the way you described that hypothetical, it could well be but i just don't know. it's a fact specific contacts. >> the answer un to me it's an official act but it sounds bad. >> it certainly sounds very bad and that's y the framers have a whole series of structural checks tt ve successfully for the last 240 years prevented that very kind of extreme hypothetical. that is the wisd othe framers. what they viewed as the risk at needed to be guarded against was not the notion the president might escape criminal prosecution for something rynlikely. they view it much more likely and describe -- and destructive to the public the risk of -- >> the framers did not put an

immunity clause into the constitution. they knew how to. theynehow to give legislative immunity. they didn't provide an to the president. not so surprising, thewe reacting against a monarch who claims to be above the law. wasn't the whole point that the presidt s not a monarch on the president was not supposed to be above the law? they did put in immunity clause, the executive acti close -- clause which set forth in broad language marbury against madison. they also discussed and consideredhawould be the checks on the presidency and they d n say he had criminal prosecution at the constitutional convention. benjamin franklin said that was not an option. everybody cried out that that was notonitutional. it is very clear on that in the second volume. >> thank you.

justice gorsuch? >> returni tthe chief justice's hypothetical about the ambassador sale in bribery. congress has a statute that names the president d ys he can be criminally prosecuted for bribery presumlyfter he leaves office. outside the core areas the justice kavanaugh was talking about, when congresspes clearly, couldn't a statutli at, couldn't congress provide a statute like that that would allow all manner of evidence to come in tpre the case? >> our position is that would have to be an unofficial act, purely private conduct for t prosecution to go forward. >> b oside the core areas of executive power, if there is a clr statement from congress that something is unlawfulnd it applies to the president, i'm struggling to see y that case perhaps the evidence could

come in. >> the strge possible cases whatouescribed describe as the core executive powers. the unrestricted bowl powers. this doesn't tn on how central it is of a legislative act is. it's ufficial act which applies to the outer perimeter of the fitzgerald. >> what would happen if presidents were under fear that their successors would criminally prosecute them for their acts in officewhher they are engaged in drone strikes, you know all the hypothetal it seems like one of the incentives that might be created is f psidents to try to pardon themselves. do you have any thoughts about that? >> i didn't thinabt 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 se as fitzgerald powerfully emphasized is the real concern of being bold and fearless action. is the president going to have toaka controversial decision where his political opponents will come after him that minute he leaves fi? will tt duly deter, will that dampen the ardor of that president to do it our constitutional structureemds of him or her which is bold d 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. >> one of the checks d balances in addition to impeachment that yodiussed is suborna liability. you don't contest that everybody following annlful order can

can be immediately prosecuted, do you? if the president gives an unlawful order, 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. they would have to be a statute that would cover for them to be prosecuted. >> we've got lots of statutes. the criminal law books are replete. is that one check that's available? >> absolutely. the only caveat i was makings if that statute was doing what marbury says yoc't do which is going after the subordinates, thfrklin clear statement rule might be employed and you might not be able to go afr at president. i don't think congress says we can go afterheresident but

we can criminalize the way the president talks to congress and we will put in a criminal statue that ys if you provide false information to congress, in carrngut the president recommendation powers, u n be prosecuted. that would be a difficult question. the fundamental point of drawing that distinction 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. nonef e statutes cited here have a clear statement covering the esent, therefore meaning the president cannot be charged for any official acts under the statutes. >> that's absolutely corct

>> that's separate from wh's official versus what's personal. for the bucket that oicial, there is no clear statement period? >> that's right. as to private conduct, we don't think the clear statement le would be invoked. these statutes in the indictment arfar afield to criminalize in clear terms the president's official acts. >> just to clarify ts,he president's not above the law, the president is not ki. the founders thought that. in response to that, the president is subcto prosecution for all personal acts just like every other american. the question is asked taken in her official capacity. >> there would ba ole series of structural changes in additi tthat wish to terror

-- which deter and have successfully deterred presidential malfeasance for 200 years. >> on the source of immunity, do -- it is not explicit in the constitution but executive privilege is not explicit in the constitution yet innited states versus nixon, the court unanimously said the artie executive power in the constitution encompassed executive privilege in the se prciple presumably would apply to executive immunity being the -- being encomss in that executive power is historically understood. >> that's correct anthe's a telling passage where this court talkedbo there is a letter from james madison to thomas jefferson at the time of the founnghere madison said they did not expressly take away removal power. the congress undstd it was left in play. if the original understanding is that the clause broad enough, it has to be taken away whichs the opposite of thprumption they are advancing here. >> lastly, i think you' acknowledged in response to

other questions that some of t acts in the indictment are ivate. your view is that some are official. is iyo position that that an analysis of which should be undertaken in the first instance by the d.c. circuit judge the district court? >> most likely a district court dethe logic of anderson. >> thank you. >> justice barrett? >> you've argued that the impeachment clause suggests or acquires impchnt to be a gateway to criminal prosecution, right? >> i think that's the plain meaning of the second phrase in the clause. >> there are many other people who are subject to impeachment including the nine sitting on this bench i don't think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of e many other officers subject to impeachment. y is the president different when the impeachment clause doesn't say so? >> someone how important has -- someone very important has

made the opposite suggestion. the solicir neral borg dashboard reviewed the historical maris of the sequence is mandatory only as to the president. that is thdoview of the impeachment judgment clause which ectly our position. the sequence is mandatory only for the president. thcriminal prosecution of a president prior to impeachment contradictthplain language of the constitution and hundreds of years of history. j admits the framers intent. we think tt actice should not be eend in this context. >> what if criminal intent is -- criminal conduct is not discovered until after the president is out of office? so there was no opportunity for impeachment? >> the framers assumed the risk of under enforcement b constructing these checks.

this way we do notose liberty. >> the special counsel makes a point which is pretty compelling. you mithat if the president were successfully in peace, he -- impeached, he could be criminally procuted after impeachment? >> assuming the prosecutiowa for the same conduct of which he was convicted. >> granted. you also say these criminal statutes, unless they explicitly enter the president, don't apply to him how can you say he would be subject to prosecution after peachment while at the same time saying he is exempt fm these criminal statutes? >> are statutes that they can -- >> a few. two or three. >> they haven't done a comprehensive review. under franklin, it's not a magic word requirement. more fundamentally, they can see

there are statutes that exist. much impeachment can occur as a result of private conduct. the impeachment judgment clause, it does significant work by authorizing thsubsequent prosecution of a president. at the framers were discussing in t cstitutional convention was concerns about private >> pick up justice kagan's example of a president who orders a coup, let's imagine he is impeachedndonvicted for ordering that coup and let's accept for the sake of argument your position that that was fial conduct. you are saying he coul't be -- could not be prosecuted fothat even after conviction and impeachment proceedings? if there is not a statute that expressly referenced the president and made it criminal for the president? >> there would have to be a statute that made a clear statement that congress has to regulate the president's couct. >> thank you. >> justice jackson? >> i now understand better your

position in yocussions with justice kavanaugh. it became clear you are saying that forherivate acts of a president, there is no immunity but for the official acts of t president there is immunity. is that your position? >> i agree with that. >> one thing that occurs to me is that this st difficult line drawing problem we are having with these hypotheticals ia private actor republic act or a public act? it ibeg necessitated by that assumption. if official acts did not get absolute immunity, it would't matter, we wouldn't have to identify which are private and which are public, correct? >> that is theppach of the d.c. circuit judge there is no determination -- >> to the extent we are worried about how do we figure out whether it's private or public on the we have t understand we are only doing that because of an underlying assumption that the puiccts get immunity. let me explore that assumption.

why is it aatter of theory and i am hoping you can omay out here, that the president would not be required to follow the law when he is performing his official ts? everyone else, there are lots of folks who have verhi-powered jobs to make a lot of consequential decisions anth do so against a backdrop of potential criminal prosecution if ty ould break the law in that capacity. we understand and we know that the president of the united states has the best lawyers in the world. when he is making a decision, he can consult retty much anybody twhether or not this thing is criminal or not. why would we have a situation in which we would say that th president should be making official acts without any responsibility for flong the law?

>> i respectfully disagree with th cracterization. the president is absolutely requir tfollow the law in his fial acts but the remedy fo that is the question. could he be subject to personal vulnerability and being sent to prison for a bad decision he made in office? >> other people who have consequential jobs andre required to ll the law make those determinations against the backdrop of th se kind of risk. what is itbo the president? i've heard you say it's because the president has to be able to acboly and make consequential decisions. sure, but there e ts of people who have to make life-and-death decisions and yet they have to follow the law. if they don't, they could be sent to prison. >>rofitzgerald, that is the inference or reasoning this court rejected.

>> fitzgerald was a civil situation in which the president actually was in a different position than other op. because of the nurof his job, the high-profile nature and the fact that he touches sma different things. when you talk about private civil liability come anybody on the street consume him. we can see that the present was sort of different than the ordinary person if you say uld be immune from civil liability. when we are lkg of criminal liability, i don't understand how the president stands in any ffent position with respect to the need to follow the lain doing his job than anyone else? >> he is required to folw e law. >> but he's not if there is no threat of criminal prosecution. what prevents the president from just doinghatever he wants? >> all the structural checks identified in fitzgerald.

>> public oversight, there ia long series. fitzgerald addressed this in the civil context. >> i'm not sure that is much of a backstop. i guess what i'm more wri about is you seem to worry -- be worried about the president being chill. i think weou have a significant opposite problem if the president was not chilled. if someone with those kindsf powers, the most powerful person the world with the greatest amount o aty could go into office knowing that there woulde no potential penalty for committing crimes, i'm ying tonderstand what the disincentive is from turning the oval office into the seat of criminal activity in this country. >> i don't know if eris any allegation of this case. what george washington said -- what benmifranklin said is we have e e prosecution about chief ecive that everyone cried out on and george washington said we e rried about factual strife.

-- factional strife. >> no. let me put this worry on the ble. if the potential for criminal liability is taken off the table, wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they are in office? right now, the fact thate having this debate because presidents might be prosecuted, presidents from the beginning of time have understood that's a possibility. that might be what has kept this ofce from turning into the kind of crime center i'm enviong. once we say no criminal liability, mr. president. u can do whatever you want. i'm worried we would have a worse problem than the problem of the president feeling constrained to follow the law while he's in office. >> i respectfulldigree with that. the regime you described is the regime we have operated on under 234 years. there has not been an

expectation -- >> let me ask you another question. let me ask about the clear statement line of questioning. i didn't see you argue that below. i understand you have that in your briefs but d u argue before the d.c. circuit judge about a clear statement with respect to statutes? >> yes, in our separately filed motion. >> that's not the question in this case. the question in this case comes out of your motion fority. to bring in an argumt at you didn't raise below, it seems you forfeited it. >> i believe it's fairly included within the question presented. >> why? >> the cou eanded the question. b not a different statutory interpretation. that goes to constitutional avoidance, statutory interptaon in u.s. for immunity which is a different thing.

>> i think it's very close logically. what extent does it exist in the argument is immunity est to the extent that it grazes a great -- it raises a great constitutional questio >> that's totally circular. you used that argument to avoid constitutional questions. you are asking us a constitutialuestion here so it doesn't even make sense to talk abo car statements and rule, the way it has come up in the context of an immunity queson let me ask you this about it. one more question. what is the argument that the president of t uted states who you say is bound by law is not on notice, that he has to do his job consistent with the law? the extent the clear statement rule comes in,t's about the person not being on notice. i don't understand why congress

in every criminal statute would have to say and thprident is included. i thought that was the background understanding that they are enacting a generally applicable criminal standard which s to the president like everyone else. what is the clear statement that would be made in this context? >> under franklin, congresha to speak clearly beforit interferes with the president's powers. we have an indictment here that seeks to cmilize objective context that falls within the heartland of core executive authority. >> you. >> thank you, counsel. mr. dreman? >> mr. chief justice, may i plse record? this court has never recognized absolute cmil immunity for any public official. petitioner claims that a former president has prominent criminal permanent criminal immunity for its official act unless he was first impeached

and ted. his novel theory would immunize former president's r iminal liability for iby, treason, sedition, murder and conspiring to use aro to overturn the results of an election and perpetuate himself in power. such presidential immunity has no foundation in the constitution. the framers knew all too well the dangers of a kinwhcould do no wrong. they devised a sysm. to check abuses of power, especially the use of offici power for privatga. here the executive branch is enforcing ngssional statutes and seeking accountability for petitioners' alleged misuse of official power to subvert democracy. that is a compelling public inrest. in rpoe, petitioner raises concerns about potential abuses. established legal safeguards provide layers of protections

with the article teeourts providing the ultimate check. the existingysm is a carefully balanced framework. it protects the president, but not at the high constitutional co oblanket criminal immunity. that has been the understanding of every prede from the framing through waterge d up to today. this court should preserve it. i welcome the court's questions. >> does the president have immunity or are you saying that there is no presidential immunity even for official acts? >> yes, justice thomasbuit is important to put in perspective the posihat we are offering the court today. the president as the head of the article to branch can assert as appliecle two objections to criminal laws that interfer

with an exclusive power possessed by the pre or that prevent the president from accomplishing his nstutional he assigned functions. that is e nstitutional doctrine that currently governs the separation ors. what petitioner is asking for is a broad, blanket immunity that d protect the president, a former president, from any criminal exposurabnt impeachment and conviction, which has never happened in our history, and we submit tha not necessary in order to assure that the president can perform all of the important tasks that the constitution reposes in him. >> in not so dista pt, certain presidents have engaged in variousctities, operations, like operation

mongoose when i was a teenager anyet there were no prosecutions. why? if what you are yi is right, if it seems that that would have been right for criminal prosecution. >> justice thomas, i think this is a central question. reason why there have not been prior criminal prosecio is that there were not crimes. i want to explain y ere are layers of safeguards that assure that former pridts do not have to lightly assume criminal liability foanof their official acts. at theutt, there is a statutory construction principle that is applicable here. rises when there is a serious constitutional question about applying a criminal statute to the presid's act. it is not and i'sure we will discuss this that no statute can apply to the president in his

official capacity absent a designation of the president in it. but there is a principle that if there is a serious constitutional question, courts will strive to construe the ute so it does not apply to the president. in addition to that, the president i think has been meiod earlier has access to advice from the attorney general and it wou ba due process problem to prosecute a president who receives advi fm the attorney general that his actions were lawful absent the nd of collusion or conspiracy that is self represented criminal violation, ici don't really see as being a realistic option. and if i couldne more thing because you raised the questionbo potential overseas taking of life and the office of legal counsel has addressed this quite specifically. the is a background principle of criminal law called the public authority exception to

liability and it is readnt federal law unless congress takes specific action to ousted, which it never has done as far as i am aware, and in a case in which the president sought to engage in overseas activity that would result in the taking of life, it did not say teral murder statute doesn't apply. that would be the crux of my friend'arment. instead, olc went through an extensive analysis on why the public authority defense would prevented from being considered a violation of law to go after a terrorist for exampl >> the court of appeals below in the decisiare reviewing said "a former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has allegedly ted in defiance of the laws." do you agree with that statement?

>> i think it soun tl logically true, but i want to underscore that the obligation of a president is to take care that the laws are faithfully executed. >> tnk it sounds tall illogically true as well. as i read it, it says simply a former president can be prosecuted because he is being proseced >> i would not suggest that that is either e oper approach in this caswe certainly not the government's approach. a prosecution does of course invoke federal criminal law. the allegations have to be prend to a grand jury. >> shortly after that statement in the court, that iwh they said, but there is no reason to worry because thprecutor will act in good faith and there is no reasono rry because the grd ry will have returned the indictment.

you know how easy it is in many cas r a prosecutor to get a grand jury to bring in indictment and reliance on the good faith of thprecutor may not be enough in some cases. i'm t ggesting here. if those are the only prottis and it is topological and that is no longer your position, you are not defending that position, why shouldn't we send it back to the court of appeals or issue an opinion making clear that that is the law? im defending the court of appeals judgment and i do think there are layered safeguards the court can take into acunthat will ameliorate concerns about unduly chilling presidential conduct. that concerns us. we are not endorsing a regime that we think would expose former psints to criminal prosecutions in bad faith, for political animus, without adequate evidence.

a politically driven prosecution would violate the constitution underweight versus united stes. it is not something within the arsenal of prosecutors to prosecutors take an oath, the attorney gener tes an oath. i don't want to overstate your honor's concern with potential relying fully on good faith, but that is an ingredient. and then the courts stand ready to adjudicate motions based on selective prosecution, pital animus. this court relieonhose very protections in a case just two years ago. wt concerns me is the court of appeals did not get into focused consideration of what acts we are talking about or what documents wartalking about because of its adoption of what you terd d i agreed quite correctly is a tautological statement.

because e ct of prosecution was enough to take away an official immunity, the factor -- the fact of prosecution, they had no need to look at what courts normally look at when you talk about the privilege or immunity question. >> i think i would take issue mr. chf stice with the idea of taking away immunity. there is no imni that is in the constitution unless this courcrtes it today. there is no textual immunity. we do not bm that is the end of the story. the united states versus nixon was not a textually based case neither s xon versus fitzgerald. we endorsed both of those ldgs. what is important is that no public official has haablute criminal immunity that my friend speaks of, even with rescto the speech or debate clause. it is narrow and ifosed on legislative acts, it is not focused on everything a

congressman does, and it responds to a specific historical circumstance that involved the two other branches potentially harassing legislators and preventing them omoing their jobs. that is why it ended up in the constitution. nothing like that ended up in the constituti f the president and that is because one of the chief concerns of the frams s the risk of presidential misconduct. th labored over this. they adopted an impeachment stcte that separated removal from office as a political remedy frocrinal prosecution. this departed from the british model. the british model was you get impeacheancriminally prosecuted and convicted in the meroceeding. the framers did not want that. they wanpolitical remedy in case a president was engaging in conduct that endangered the nati. he could be removed. he can't be prosecuted as a sitting president. that has been a long-standing

justice department position. >> y dispute propositions that of immunity, but as i understand your argument, you do recognize that a former president has a form of special protection, namely that statutes that are applicable to everybody must be interptedifferently under meircumstances when applied to a former president. i't that true? >> it is true because of t general principle that courts construe statutes to avoid serious constitu questions and thateen the long-standing practice of the office of legal counsel. >> all right, this is more than just a quarrel about terminology. whether it is immunity or special protection because it involves thidierence which

you are well aware of. if it jt a form of special protection, in other words statutes will be interpreted dierently, then that is something that has to be litigated at trial. the former preside c make a motion to dismiss and may cite opinions and the district court say, that's ne, i'm not bound by olcnd interpret it differently, so let's go to trl. and there has to be a trial and that may involvere expense and it may take up aotf time and during the trial the former president may benae to engage in other activities. then the outcome is dependent on e ry, the instructions to the jury and how the jury returns a verdict. so the protection is greatly diluted if you -- itakes the form that you have proposed.

why ishabetter? >> it is better because it is more balanced. the blkeimmunity that petitioner is arguing for just meat a criminal prosecution is off the table less he says that impeachment and conviction have occurred. those are political remedies that are extremely difficult to achieve in a ce ere misconduct occurs close to the end of a psint's term. congresss likely to crank up the machinery to do it. if the impeachment trial has to occur after the president has ft office, there is an open question about whether thaca happen at all. >> you are arguing against the most far-reaching aspects of the argument. >> that is correct. and let me turn then to why -- >> do you ree that there are soects of article two ential power that are

exclusive and that congress cannot regulate and thefe cannot criminalize? >> absolutely. >> for other officl ts the president may take that are not within that clive power, assume for the sake of argument this question that there is not blanket immunity for those ofcial acts, but that to preserve the separation of powers, to provide fair notice to make sure congrs s thought about this that congress has to speak clearly to criminizofficial acts of the president by a specific reference. ateems to be with the olc opinions suggest. i know you have a little bit of a disagreement with that. >> justice kavanauwould like to take all of those in turn because i do not think this court's cases speak that broadly and i d't think the office of legal counsel's opinions stand for thad proposition that unle t president is specifically named he is not in

the statute and i don't think that is necessary to afford advocate protection for the president's valid article two functions. >> sorry to interrupt but i want to get ts t and you can incorporate it. you set unless there is a ris constitutional question. it is a serious constitutional question whether a statute can be applied to the president's official acts, so wouldn't you ways interpret the statute not to apply to the presidenev under your formulaonnless congress had spoken with clarity? >> i don't think across-theoa that a serious constitutional question exists on applying any criminal

prosecution to the president. >> the problem is the vagueness that can be used against a lot of presidential activities hially with a creative prosecutor who wants to go after a presidt. >> let me try to -- >> that is what we arealng about historically is the risk and going d, the risk. you can take all of that. >> i tend to put theueion about the risk is very serious. it is a question that this court s to evaluate. for the executive branch, our view is here is a balanced protection that better serves the interests of the constitution that incorporates both accountability and protection for the president. and i want to go through t protections that do exist. but perhaps it is worth returning at the outset to the statutory construconuestion that you raised. the office of gacounsel has said, it does not name the president section 201 does not name t psident. >> assume that is personal. that is what brewster said >> the bribery statute in 607

says the president. i've got it in front of me. there is that. let me just backup though a second of what was a quick exchange with justice kavanaugh i want to make sure i understand. diyoagree that there are some core functions of the executive that congress cannot criminalize? >> yes. >> you can calitmmunity or they can't do it, but what is the difference? >> wca it an as applied article to challenge. >> can we call it immunity f shorthand's sake? i think we are narrowinghe ground of dispute. it seems to me there iso area you concede that there are official acts that congress cannot criminalize and now we are talking about the scope. >> i 't think i suggest, i i think it is a significant gap between any official act and the all core of exclusive official

acts. >> i got that, but i wan explore that. for example, let's say a president leads a mostly peaceful protestitn in front of congress because he objects to a piecef gislation that is going through. and itct delays the proceedings in congress. now, under 1512 c2, that might be correctly impedinan -- corruptly impeding an official proceeding. is that core and therefore immunized or whatever euphemism you want to use with that? or is that not core and therefore prosecutable? without a clear statemt at applies to the president. >> it is not core. e core kinds of activities the court has acknowledged are the things that i would run through the youngstown analysis. it is a pret sll set, but things like the pardon power, the power to recognize four nations, the power to veto

-- foreign nations, the powero veto legislation, the powe make appointments. constitution specifically allocates to the presint >> so a president then could be prosecuted for the conduct i desc >> probablnobut i want to explain the framework of why i don't think that that wo prosecution that would be valid. first, i think you need to run through all of the normal categories of analysis. you may well default to it does not apply. >> that was my question. you said it fell outdehat core we will call it immunity for simplicity se. >> yes, i understand but there is a separate category. >> why coul't he be prosecuted for leading a civil rights ott in front of the capital

important legislation?a piece of >> i think what you need to do is run throughf the very president specific layers of analysis. one is whether the statute would be conru not to apply to his conduct even if it is not part of that small core of things ngss can't regulate at all. if itpetes to prevent the president from fulfilling his -- he could have given speeches against it. he did. but he did something more and it impeded and sought to influence an official proceeding. >> we are starting with the layers of protection and we are now down tou whether the statute would be construed to apply toim then there is the question of whether he hashetate of mind. >> le's say he does. nobody knows what corrupt intent means.

we have beenrod that tree. maybe it means hkns he is doing wrongwh the government told us. he knows he shouldn't be blocking a congressman. >> let me get to the next layer which is that the president does have access to the attorne general to provide legal advice, and regularly gets legal advice from the attorney general about thul scope of the president's activities. we could go down two tracks re advises him that as an incidentl of his article two authority and in carrying out the functions of the presidency, he can lawll participate in that protest. it is kind of a first amendment analog to the president's official powers, which the court is exploring in otr ses. alternatively, the attorney general could advise himthe was nothing in the language of the statute that carves you out, i don't see a serious constitutionalueion and it and i would advise you not to violate iminal law.

>> and then he can be prosecuted >> no. >> if he gets a negative opinion from the attorney general, he still couldn't? >> i would assume most presidents -- >> if he gets one does it anyway, he could be prosecuted? >> if we are down at that level then i think we are asking is whether the president is subject to the criminal law and our answer is yes, he is subject to the criminal law. >> can we go back to the bribery e? rstand that the only thing covered by that is the president is barred from soliciting or receiving funds in any room or building. >> that's correct. oicial building. its a very limited convention. so, as i understand this, there are two limited provisions mentioning the prede that are included. there is a whole number of provisions that exclude the president, manmo that exclude the president, correct?

>> it is a small number on both sides. >> justice barrett made the point that if we say a preside n't be included in a criminal law unless explicitly na then that would bar the senate from impeaching him for high crimes or miemnors, because that means that he is not suto the law at all. correct? that is a tautological. think what justice barrett was saying and we would ag with that is that unr friend's position after impeachment he could be prosecuted, but under his statorconstruction approach there would be nothing to prosecute him for. >> exactly, that is the point is if he is not covered by the crimalaw, he cannot be impeached for violating it. all right. could we go further on this clear statement rule? the situations and you mentioned elier in which we have looked to see ifheresident is covered is contextual, correct?

>> correct >> wt e the factors we generally look at? i'm thinking about whether the apa covers the president. >> correct. >> what we did was analyze what powers were being given to in the lawsuit and c. we look at words, structure, separation of powers issues relango our case law that said you can't direct a president to do anything and isould have been a subterfuge for that. >> all correct. >>o i don't know why -- how they would fashion a clear statement rule that would say when a loss says any persons -- when the law says any rss can't accept a bribe, that that peits the president to do it. >> so, i agree, justice sotomayor, that the way that this court has interpreted statutes that do carve out the president was veryonxt

specific. the franklin case basically involved a holding that we are highly uiky to say that the president is an agency, something the government said would be a peculiar understanding of agency, when e effective it would be that we would review the president's decisions under statutes for abuse of discretion, which is a very extraordinary thing to do, even going back to marbury. marbury says discretionary acts of the president or not the kind -- are not the kind of thing the urt reviews. >> cou io back to your brief ? going back to what some of m colleagues have asked you, there appears to be some narrowing principles that the president is subject to all criminal laws in alsituations. do yougr that this affects core powers that he would nobe subject to any laws that attempted to limit those core

powers? >> that'coect. >> you are defining core powers as those specified by article two. >> that is potentially correct, ye >> and the only words in the constitution of that -- that law is that he shall take care that the lobby faithfully executed, correct? >> that's right. >> hard to imagi tt a president who breaks the law is faithfully executing the law, correct? >> he has to execute all of the >> presidents have to make a l of tough decisions about enforcing the law and the to make decisions about questions that a uettled and they have me decisions based on the information that is available. did i understand you to say, well, hmakes a mistake, he makes a mistake, he is subject to criminal laws just like yby else? >> he is in a special position

for a number of reasons. one is that he has accesto legal advice autverything he does. he is under a constitutional obligationhe he is supposed to bfahful to the laws and the constitution and making a mistake is not wt nds you in a criminal prosecution. there has been some talk about the stut issued in this case. i think they areaiy described as statutes engaging in conspiracies to defraud the unedtates with respect to onof the most important functions, namely the certification of the next president. >> i don't want tdiute that particular application of that 371 conspiracyo fraud the united states, but would you not agree that that is a peculiarly open-ended statutory prohibition? that fraud under that provision

under like most other fraud provisions doesn'require any impairment oa operty interest? >> it igned to protect the functions of the united states government and it is difficult to think of a more ctil function than the certification of who won the election. >> i'm not discussing the particular facts of this case but it applies to any fraud that interferes serus with any governmentpetion. >> what the government needs to sh ian intent to impede, interfere, or defeat a lawful governmental function by deception and it has to be done. these are not the kinds of activities that i think any of us would think a president needs to engage inn der to fulfill his article two duties and in particular a case like this one. i want tpi up something the coursa earlier about a public official acting to achieve public ends.

and a public official acting to achievate ends. applied to this case, the president has no functio wh respect to the certification of the winner of the presidential election. it seems likely that the fra designed the constitution that way because at the time of the founding presidents had no two term limit, they could run again and they were expected potentially to want to do that. the potential for self-interest would explaithe states conduct ections, they send electors to certify who won the elections and to provide votes, and then congress i extraordinary joint session certifies the vote. the president doesn't have an official role in that proceeding it is difficult for me to understand how there could be a serious constitutional question

about saying you can't use to defeat that function, you can't obstructed through deception, you can't pre millions of voters of their right to have their vote counted for the candidates who they chose. >> thank you, counsel. justomas? justice alito? >> could we just briefly review the layers of protection you think exists? i'm going to start with what the d.c. circuit said. the first layer of protection is that attne general and other justice department attorneys can be trusted to act in a profeson 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 justicdertment for a long time are honoblpeople and they take their professional, ethical responsibilities seriously, but there have been exceptions both among attorneys general and

federaprecutors. >> there have been rare exceptions, justice alito, but hewe are talking about layers of protection, i do think this is e arting point and if the courts have concerns about the robustssf it, i would suggest looking at the charges in the case. >> i'm going to talk about this in the abstract because what is before us does involve this particular case, which is imnsy important, but whatever we decide will apply to all fureresidents. as for attorneys general, two have been convicteofriminal offenses in office. others, a mitche pmer comes to mind, who is widely regarded as having abused the power of his office. would you agree wi tt? >> i would, but they are officialin long line of attorneys general who did not d in departments of justice staffed by multiple people would

do adhere to their office. justice alito, the point i 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 exacy w the department of justice functions in the way t is supposed to. petitioners alleged to have tried to getepartment of justice to send fraudulent letters to the states g them to reverse electoral results. >> i understand that. but iaid, this case will have effects that go far beyond isarticular prosecution. moving on to the second level of protection that the.c circuits cited. federal grand juries will shield former presidents from unwarranted indictments. how much protection is that? >> it affords two levels of protection. 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 toetut of the starting gate. >> there is tholthought about indicting a ham sandwich. you had a loofxperience in the justice department. you come across a lot ofas where the u.s. attorney or another del prosecutor rely wanted to indict a case in the grand jury refused d so? >> there are such cases. yes. >> od a while, there is an eclipse too. [laughte >> for the most reasons prosecutors have no reono bring a case to a grand jury and secure an indictment where don't have evidence to prove guilt undeonable doubt. it is self-defeating. >> the third is that theeny all the protections afforded all criminal defendants. that may be true at the end of the day but a lot can happen between the time when an indictment is return a the time when the former president finally gets vindication,

perhaps on aea isn't that correct? >> it is correct, but i think we should cr 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 pod to potential criminal prosecution. it is common gunthat all former presidents have known that thecod be indicted and convicted. and watergate cemented that understanding. the watergate smoking gun case involved president and h.r. haldeman talking about and then deciding to use the cia to give a bogus story to the fbi to shut down a criminal investigat

>> mr. saur and others have identified events in the past were presidents have engedn conduct that might have been charged as federal crimes and you say, that is not really true and this is page 42 of your brief. so, what about president frklin d. roosevelt decision to intern japanese americans dungorld war ii? couldn't that have been chaed nspiracy against civil rights? >> today, yes, given this court's desi in trump v. united states in which -- trump v. hawaii in which the cou said korematsu was overruled and president roosevelt made the decision with the advicef s attorney general. >> is that really true? i thought there was really no threat of sabotage, as did j. edgar hoover? >> there is a lot of historical controversy.

that occurred during wartime and it implicatea tential commander-in-chief concerns, concer aut the exigencies of national defense that might provide an as apiearticle to challenge at the time. i'm not suggestingod. but the idea that a decision that was made and was endorsed by the court pha wrongly would support criminal prosecution under 241 which requires united states v. lanier that it had been made specific there is notice to the president. >> wcod go through other historical examples, i won't do that. let me touch briefly on a couple of other things. the relevance of advice of counsel and i s't clear what your answer is. if the psint gets advice from the attorney general that something is lawful, is that an absolute defense? >> yes, i think that it is under the principle of entrapment.

this is a due process doctrine that we referred our brief. we cited authority of this court that if an authorized government representative tells youha what you are about to do is lawful, it we a root violation of due process to prosecute you for that. >> won't thativpresidents incentive to be sure to pick an attorney general who will reliably tell e esident that it is lawful to do whatever the presidenwas to do if there is any possibly conceivable argument in favor of it? >> i think the constitutional cture protects against that risk. the president nominates the attorney general and the senate provides advice nsent. these are the structural checks that have operated for 200 years

to prevent t kd of abuses that my friend fears going forwaras result of this once in history prosecution. >> on the question of whether a president has the authority to pardon himself, which came up ier in the argument, what is the answer to that question? >> i don't believe the department of justice has taken position. the only authority is a of the office of legal counsel wrote that there is no self pardon authority. the department h n addressed it further and this court had not addressed it either. >> when you address that question before, are you speaking in your capacity le as a member of the special unsel's team or are you speaking on behalf of th justice department, which has special institutional responsibilities? >> i'm speaking on behalf of the justice department representing the united states. >> don't you think we need to know the answer at least two the justice department's positi o

that issue in order to decide isase? because if a president has the authority to pardon himsf before leaving office and the d.c. circuit judgeig that there is no immunity from prosecution, wo't the predictable result be that presidents in the last couple days of office will pardon themselves from anything they might have been conceivably charged with committing? >> i really doubt that, it presupposes a regime we have never had except for president nixon and as alleged in th indictment here. presidents who are conscious of having engaged in wrongdoing and seeking to shield themselves. the policaconsequences of a president who asserted a right f pardon that has never been recognized that seems t contradict a bedrock principle ur law that no persians shall be the judge in their own se, those are adequate deterrents so that this kind of dystopian regime is not going to

evolve. >> let me end with jusa question about -wh is required for the functioning of a stable democtisociety? which is something that we all want. i'm sure you would agree with me th a stable democratic society requires that a candidate o loses an election, even a close one, even a hotly coesd one, leave office peacefully, if that candidate is the incumbent. >> of course. >> all right. if an incumbent who loses a very close, hotly contestedleion knows that a real possibility after leaving office is not that the president gng to be able to go off into a peaceful retirement, but that the

president may be criminally prosecuted by a bitter polic opponent, will that not lead us into a cycle that destabiliz the functioning of our cnt as a democracy? and we can look around the world and find countries where we have seen this process where the loser gets thrown in jail. >> i think it is exactly t opposite, justice alito. there are lawful mechanisms to contest the results in election. and outside the record, but i think a public knowledge, petitioner and his allies filed dozensf ectoral challenges and in my understanding has lost all but one that was not outcome determinative in any respe. order to sustain substantialin claims of fraud that overturn an election result that is cerfi by a state, you need evidence, yd proof, and none of those things were manifested. there isn propriate way to

challenge things through the courts with evidence, if you lose, you accept 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 go fth of its public officials, correct? >> absolutely. >> that good faith assumes that they will follow the law. >> correct. >> putnghat aside, there is no failsafe system of government. meaning, we have a judicial system that has layers and lars and layers of protection in the hopes that thincent will go free. we fail routinely. but we succeed more often than not. in the vast majority of cases, the innoce dgo free.

sometimes they don't and we he some postconviction remedies for at but we still fail. we have executed innocen people. having said that, justice alito went through step-by-step all of the mechanisms that could potentially fail. in the end, if it fails completely it is because we have destroyed our democracy on our own, isn't it? >> it is and i think there are ditional checks in the system. a separated power systemas designed to limit abuses. one of the ways in which abuses are limited is accountability within the criminal law, but the ultimate check ithgoodwill and faith in democracy and crimes that are alleged in this case that are the antithesis of

democracy -- >> an encouragement to believe words that have been put into suspicion here, th nman is above the law, either in his officialivate acts. >> i think that is an assumption of the constitution. >> justice kagan? >> i want to go through ur framework and make sure i understand it. first, on the small category of things that you say have absolute protection, that they are core executive functions. what are those small categories? >> pardon power. >> veto. >> foreign recognition. appointments. coress cannot say you cannot appoint a federal judge who hasn'received a certain diploma or hasn't achieved a certain age. there are a few other powers. >> is commdein-chief? >> com-in-chief is on the list, but i want to add to my ann that that congress has

substantial authority in the national security round. it declares war, raiseth army. >> that may be viewehe set of functions that nobody has it over. >> now in the ne cegory where we have left the core set behind and warin the world of official actions where you say there are various statutory constructi res that might come io ay. could you have characterized those as somethi dferent from saying the statute doesn't say the president therefore it esn't apply to the president? >> that's right. >> i wanted to give you an opportunity to say how that would look, how that analysis

would look in a given case and in the course of responding to that, i'm sort of thinking of something like the olc opinion, icsays bribery, the president can be tried and convicted of bribery, why is that true? >> that is true because there is no serious constitutional quesonhat the president needs to engage in bribery to carry out tutional functions. bribery is in the impeachment clseo it falls outside of anything that could be viewed as inhere ithe need of article two to function. >> do you think the preme that olc opinion was that bribery was simply not officia or is the premise that the bribery was official and sti the president could be prosecuted for? >> i think bribery ind of hybrid that illustrates the abuse of public ofor private gain that we think our

things that should be not held to be immune the public official cannot extract the bribe without the official power to offer as quid orro i guess the quo actual. it is a crime that can only be committed by public officials who misuse their pow. it is one of the things that was most mistrusted. many of the actshaed in this indictment or that would violate criminal law involve the misuse of official power for private gain. >> so if you were to say what the nes in this category, like when it is that the statute shlde understood as precluding presidential prosecution and when it is that the statute should be understood as allowing it, what ger principles should guide? >> the general princi think kind of emerge from looking at what the office of

legal counsel has done. for example, with respect to a fedel atute that prohibited appointments to cords -- courts, the office of legal counsel sa th infringes on the power to appoint federal judges. cannot be presumed that congress intended to do that because it would raise sious constitutional question. then there are categories of statutes where the president is in. like the grassroots lobbying statute. the olc wrote an opinion aut that and it said for the president or other public officials to go out into world to promote the pgrams, that can't be what congress intended to prohibit. what it did intend to prohibit is using f funds to gin up an artificial grassroots campaignhagave the appearance of emerging from the people that it was really top down.

the olc said the president and ficials who carry out the president's mandates are subject to that statute so that is a more nuanced one. and those are the examples that i will give you. the thirhe statute that would permit prosecution for contempt of congress. the olc concluded that a good faith assertion of executive privilege as a reason t providing information to congress would preclude prosecution because congss cannot be deemed to have altered the separation of powers in ch a manner. i think olc would have probably gone on to say of congress tried to do it, it would bdeed unconstitutional. but this was a statute that did not specificallythe president. there are lywo that do that. so the entire corpus of federal criminal law including bribery offenses, sedition, murder, would all be off limits if it were taken to the exte tt some of the questions have suggested.

and it does raise ous constitutionalueion. if so, to what extent can be carved out individually? and the y be some instances erthe statutes here could be carved out and a particular cod be found to be protected. or does the statute ro the applications, somewhat analogous to overbreadth analysis, infringe on the president's powerso can say that? >> that set of issues seem impoanand may be difficult occasionally. th ao seem not really before us in the way justice jackson ggested earlier. do you think they are before us and we should clear it up, here it is? what else could we do? how could we deal with this? whether or not there is this absolute immunity.

ihink the court has the discretion to reach that iss. it was not raised in the strict court and it was not raised in the court of appeals. the analysis i would use to get there is a fusion aouple of principles. the court haofn resolved threshold questions that are a prerequisi tan intelligent resolution of the question presented. in a case like united states versus grubbs, the courteaed out to decide whether anticipatory warrants are valid under the fourth amendment beurning to the question of whether the triggering condition foannticipatory warrant had to be in the warrant. that is one principle. some analogy to this is vermont natural resources en v. united states. the first question was whether a state agency was a person within

the meaning of the act and the second question was whether if the state agency was 11th amendment immunity kicked in, of why it could reach boths reaching the person question did not expand jurisdiction and it made sense as a of constitutional avoidance to do that. there are considerations that cut against this. for overall government equities, we are not wild about parties who raise an immunity case tha can be presented to a couron appeal and then smuggling and other issues. so we would want to guid court not to have an expansive approach to that issue. but the final inthat i would say about this is part of our submission to this court is that the artie branch and the article two branches are aligned in believing that this prosecution is an appropriate

way to enforce the congress by making the law, th ent executive by deciding to bring it. is a building block of that submission is that congress actually did apply criminal laws to official conduct, the cou m wish to exercise discretion to resolve that issue. >> i have one last set of questions which has to do with the ofci unofficial line. you heard mr. sour's responses to justice barrett's questis anmy questions about what he thinks counts as official here and what he thkss unofficial here. i'm wondering what youoofrom his responses and also how you would characri what is official and what is not official in this indictment. >> so, i think petitioner conceded that there are acts th a not official that are alleged in the indictment. we agreed on all of that. sagree with him on everything else about whate said as official a wt is not.

organizing fraudulent slates of electors, creating false documentation that says i'm an elector, i have been appointed pr, i'm going to send a vote to congress that reflects that petitioner won rather than the candidate that actually got the most votes and i ascertained by the governor and his electors were appointed to cast votesth is not official conduct. that is campaign conduct and i that the d.c. circuit judge case did draw an propriate distinction. a first-term president running for reelti can act incapacity of office seeker or officeholder. when working with private lawyers and in private-public retis advising to gin up fraudulent slates of elections, that is not part of a president's job. >> there is an allegation in the diment that has to do with

the removal of a justice department officia is that core protected conduct? >> we did not think thcore protected conduct. i don't think i would characterize that episode quite that way. we do agree th t department of justice allegations were a use of the president's official powe inany ways, we think that aggravates the nature of this offense. seeking as a candidate to oust the lawful winner of the election and have oneself certified with private actors is a private scheme to achieve a private and read for an incumbent president to use his presidential powers to try enhance the likelihood that it succeeds makes the crime in our view worse. in the department of justice episode, this occurs late in the elti cycle after many other schemes have failed. athat point, the petitioner is

alleged to have tried to pressure the department of justice to send false letters to the states claiming there were serious election rulities and they should investigate who they certified. none of this was true. the departmentf stice officials id this was not true, we are not going to do that. at that point, petitioner is alleged to threaten to remove the department of justice fials who are standing by their oath and replace them wi another person who would carry it out. we are not seeking to impose criminal liability on the president for exercising or talking about exer the appointment and removal power. what we are seeking to impose criminal liability for is a conspiracy to use fraud to subvert ection, one means of which was to try to get the justice department to be colit. the case would have been no dierent if petitioner were successful and he had actually

exercised the appointment and removal power and had gone through and those fraudulent letters were sent. it would have made the scheme more dangerous, but it would not have changed the crime. >> how do we think about things like conversations with the vice president? if you say it that way, they woulfa under executive privilege. but how does that relate to the question we are asking here? >> this is one of the most fficult questions for the department of justice and wa to explain why that is. if we are operating under a fitzgerald versus nixon lens and looking at this the way we look at things when there is a private lawsuit leagainst the president,e ke a very broad view of what the outer perimeter of official presidti action is in order to be as protective of the presagainst private wsuits that as the court explained in nixon versus fitzgeralde very deleterious to the president's conducofusiness. if we were putting this under a

fitzgerald lens, we ulhave to answer the questi, s he acting incapacity is office seeker or was he ainin the capacity as fiholder? if you run through the indictment, you can find support for those two characterizations and the department of justice has not yet had to come to grips with how we would analyze th set of interactions. thank you. >> justice gorsuch? >> i wanted to confirm i thought i heard that you thought that the blasinga fmework was the appropriate one. >> largely, yes. we agree with the idea of the diinion between officeholder and office seeker. ao agree that if it is objectively reasonable to view tivities as those of officeholder, then the fitzgerald immunity kicks . i think we would look more at

the content of the actua interaction in order to make that determination t blasingame suggested on the facts of the case might be approprie. >> can y ge me an example of >> can you give me an example of what you have in mind might be appropriat i'm trying to understand the nuance. >> blasingame, a generally very favorable, pro-government amework that we endorse. >> i would have thought. >> notere, because we don't think fitzgeraldes. >> i understand that, but putting that aside, the distinction beofficial act and private office seeker, their test is you think good enough for ment work? >> on this one, the department hasn't takext step since the blasingame decision, but let me offer a few thoughts that might clarify it. the blasingame decision focused oective contextual

dications to see whether the president was acting as a campaigner, as opposed to an officeholder. i think that that cion can also be made by looking at what the president actually said. let me illustrate that with an allegation, briefly. between petitioner and a state official, petitioner is alleged to have sal i need you to find me 11,000 votes. ange. i think if you look at that content, it's pretty clear that petitioner is acting in the capacity as office seeot as president, and we would look at that content. >> ok. but the tests, but i am just focused on the legal tests. i'm not hearing any exceptions to it. >> other than the d.c. circuit judge a's to more content consideration off-limits than i would. >> ok. and i want to understand on the

core immunithatever word we use, it seems to me we are narrowing the ground of dispute here considerably. do we look at motives, the president's motives for his actions? i mean, for example, he has lots but he might use them in order to enhance his perna interests. his election. is that a relevant consideration when we are looking at core powers? >> so, i am thinking of this more as looking at the objective of the activities as oppos t the kind of subjective motive in the sense that your hor suggests. i think there is l of concern about saying electoral -- and electoral modem to be reelected. every first-termredent, >> -- >> every first-term president, everything he does can be seen through the prism by critics, at ast, of his personal interest

in reelection. so you wouldn't nt that, i think you would say, personal respect to the core powers.th >> probably, with respect to the core powers, we inthere are things -- they are things that can't be regulated at all. regardless of motive. >>o than any noncore powers is what we are ghng over. what role do motives play, then? one could remove an appointee -- first of all, maybe ask this first. is reminan appointee, a presidential appointee, a core power or noncore power? >> here, i might need to differentiate between the principal officers, like myers, that have been regarded as hang constitutional status of being removable at will fro inferior officers were congress does have some regulatory latitude to impose restrictions on removal.

>> sure. let's put that aside. i tand that. >> putting that aside, appointing a principal officer is ce power. i'm not prepared to say that is no potential criminal regulation, to say you can't do it for corrupt purposes to enrich yourself, for example. >> bribery, all right. but that'what i was wondering. motives come into the core power analysis are not, at the front i heard no, and n im hearing maybe. >> i thi it might be more prriate because the department has not had to take a po on exactly how these core powers ulbe resolved as appld nstitutional analysis. none is involved in this case. >> i guess'm wondering -- and i'm not concerned about this case so much as future ones, too -- these noncore powers and maybe core powers re

president is acting with at -- where a president is acting tht least part personal interest in getting reelected, everything he does he wants to get reelected. if you are allowing in motive to color that, i'm wondering how much is left of th the core or noncore powers. >> i would be fi wh carving that out and deeming that to be something that is intrinsic in our electoral system. we are not talking about applying criminal law to somebody who makes a announcement that this program will be good for the united states and somebody could come along and say, well, you really did it to get reelected. leaving aside whether any even -- whether any o that violates a crimin l, let's assume that it does. i'm doubtful that ds because i don't think criminal laws gerly operate on motives as opposedjectives and purposes. >> intention aside, intention is a motive and a motive is an

inteio leave that aside. >> putting that aside, that really to me falls in a very different category, and it is so -- >> there are some motives that are coizle and others that aren't. iea it is awkward when we look back at t iunction of the earlcas. you can't enjoin a president. you couldn't hold him in contempt. for sure. >> can i try one more time to >>pithis out just a second. it didn't matter what the president's motives were, we are not going to look behind i same thing with nixon. we said, gosh, nixon vers fitzgerald, that is something courts shouldn't get engagein because presidents have all manner of motives. d again, i'm not concerned about this case, but i am concerned about futus of the criminal law to target political opponents based on accusationt their motives.

whether it is reelection or who know corrupt means in 1512 -- we don't know what that means. maybe we will find out sometime so. but the dangerousness of accusing your political opponent ofg bad motives, if is -- if that is enough to overcome your co pers or any her limits, reactions, thoughts? >> yea think you're raising a very difficult que >> that is the idea. >> that is the idea. >> testing the limits h side arguments. >> and i'm going to say thing i don't normally say, which is that ily not involved in this case. [laughter] 't have bad political motive, in thasee. >> appreciate that, but you also appreatthat we are writing a rule for the ages. i think i would sy looking at the statutes. seeing what restrictions they do place on the president's ndt.

r example, the statue that proh fraud to defeat the lawful function of the united states. the statute fis what the purpose is that the defendant has to have in mind. it has tbeo defeat something that the united at is doing and it has to be by deception. i n't think that gets us into the realm ove-hunting in the area where we are as concerned as the corporately -- as the court wouldout doing something atould undermine the presidency and the executive branch. and 1512 c2, we may have different views on the clarity and the scope of thastute. i think of the court -- if th court does interpret corrupt as involving a consciousness of wrongdoing a evates that the consciousness of illaly, and we are in a different realm. -- then we are in a different realm. wanting to get reelected is not an illegale and you don't have to worry about prosecuting presidents for that. >> thank you. >> justice kavanaugh? >> as you've indicated, this

case has huge implications for e presidency, and the future of the presidency, for t future of the country, in my view. you have referred to the department a few times as having support of t position. who in the department? the president, the attorney general? >> solicitor general the united states. part of which the y which the special counsel functions is as a compontf the department of juscethe regulation and vision, that we reach out and consult, a oa question of this magnitude that involves equities that are far beyond this prosecution, as the questions of the court. >> so the solicitor general. >> yes. >> second, like ste gorsuch, i'm not focused on the hearing -- here a now now of this case. i'm very concerned abo t future. i think one t court's biggest mistakes was orson vs. olson. i think that was a terrible decision for the presidency and

r e country. and not beusthere were bad people who were independent councils, but president reagan's ministration, esent bush, president clinton's were really hampered, in their view, all thre bthe independent counsel structure. and what i'm worried about here is that, let's relax article tw a bit for the needs of the moment. and i'm worried about a similar kind of situation applying here. that was a prosecutor investigating a president in each of those circumstanc, someone picked from the opposite party, current president, usually was how it worked. justice scalia wte the fairness of press must be judged on the basis of what it permits to happen, not what it produc ithe particular case. you've emphasized many times regularity of the department of justice.

and he said, and i think this plies to the independent counsel system and can apply if presidents are routine sject to investigation going forward. one thing is certain, however, it involves investiginand perhaps prosecuting a particular individual. can one imagine a less eqtae manner of fulfilling the responsiblisossibility to prosecute? what would the reaction be if in area not covered by the statute, the justice darent posted a public notice inviting applicants to asstn an investigation and possible prosecution of aerin prominent person? does this not invite what justice jackson described as picking the man and inserting the -- and searching the law books or putting investigators to wk pins and effects on him? toe re the investigation must relate to the area criminal ofnstestified by the statute. nothing prevents it from being very broad. i rarase at the end because i am referring to the judges.

that is the concern going foar is that the system when former presidents are subject to prosecution, it tells us is not gointo stop, it's into cycle back and be used against the current or next president and the president after th. all that, i want you to try to allay that concern why is this not morrison v. olson rex we agree with you? >> first of all, the independent counsel regime did have many structural features that emph independence at the expense of accountability. we don't have that regime now, but even under that regime, i inif you looked at lawrence walsh's report on iran contra, i think it goes to a ver fundamental point for the court to consider. judge walsh saidvestigated these matters, the proof did not

merely come close to establishing criminal violation. so we have lived from waterge through the present, through the independent counsel era, without these prosecutions having gone off on a runaway train. with all its flaws. >> ihi president reagan, bush, and clinton whether rightly or wrongly thought contrary to what you just said. >> i think nobody likes instated for a crime, but it didn't result in the kindf vindictive prosecution that i think your honor is raising. we have a different system now. i ink there was a consensus throughout washington that there were flaws in the independent counsel system. if lapsed, we now are inside the juste partment with full accountability resting with the at general, so the special counsel regulation now doesn't operate the way that the independent counsel regulations do. and this court would have something to say about it, i

think, if the statute were revived. i'm not renybody is in favor of that. >> i was saying this is a mirror image of that,s e way someone could perceive it. but i take your poinabt the different structural protections internally. like justice scalia said, i do not mean tsuest anything of the sword the present case, we are not talkinabt the present case. i'm talking about the future. another point, you talked about the crin statute. it's very easy to charaere presidential actions as false or misleading under vaguetates. so, president lyndon johnson, statements about the vietnam war, say something is false. it turned out to be false that he says about the vietnam war. -- w says about the vietnam war. 37prosecution after he leaves office? >> i think not. this is an area that i do think merits some serious and nuan consideration. statements that are made by a presidenhe public are not

really coming within the realm of criminal statutes. they've never been prosecuted. i realize that the court can say what if they were? and then i think you get to what i would regaa hard constitutional question. i would probably guide the court rom trying to resolve today, although i do think it is very dfent from our case and in distinguishable and important ys but you are dealing here wit two branches of government that have a paramou ierest in the integrity and freedom of their interactionsiteach other. on the one hand, the president of coue ould be very free to send, usually, his cabinet officials andbinet officials to congress to provide them with the infoatn needed to enact legislation and to make naon policy. and we are vy ncerned about anything that would trample that. on the others the -- on the other side of the

uation, congress has a compelling interest in rng accurate information and at the very leastrmation that is intentionally and knowingly false. that would pollute -- >> how about presidento's pardon? very controversial in the mome. >> yes. >> hugely unpola probably why he lost in 1976. yes. >> now lkeupon as one of the better decisions in presidential history, i think, by most op. if he is thinking about, if i grant this pardon to richard nixon, could i be investigated myself for obstruction of justice on the theory that i'm interfering with the investigation of richard nixon? >> so this would fall into that small core area that i mentioned to jusagan and justice gorsuch of presidential responsibilities that congress cannot regulate. >> how about pnt obama's drone strikes? >> the offe legal counsel looked at this vy refully

and determined that, number one the federal murder statute does y to the executive branch, the presidenwod be not personally carrying out the strike, but aiding and abetting laws are broad and it is teined that a public authority exception that is built into statutes and that applies particullyo the inverter statute talks about unlawful killing did not to the drone strike. so this is actually the way that the system should function. the department of justice takes criminal law very seriously. it rs rough the analysis very carefully with established inples. it documents them, explains them, and then the preside c go forward in accord. --accordance with it. and there is no risk of prosecution for that course of activity. >> thank you for your answers. justice barrett. >> i want to pick up with that publicutrity defense. i'm lookg that llc memo that david baron wrote tt u cited in your briefs. he describes the public authority defense setting the -- citing the model penal code

with a few dfent definitions, but i will just highlight th o. justifying conduct which is required or authorized by the efining the duties or functions of a public officer, the law governing the armed services or lawful conduct of war, or any other provision of law imposing a pubc ty. that sounds a lot like dividing a line between official and private conduct. think it is narrower and i recognize it is in his den, not immunity. but whene ok at the definition of it, are you acting wiin the scope of authority conferred by l, scharging a duty conferred by law? i think inarrower than lesson game -- blasengame, nixon and fitzra, that is what it sounds like to me. do you agree or disagree >> i certainly understand the intuition that when you act outside of your lawful authority, you kind of been no -- you kind of are no longer carrying it out. i don't think that that que works for presidential activity. the only way he could ve implemented the orders is by

exercisingis commander-in-chief authority over the armed forces or his authority servise the executive branch. those seemikpoor executive asked toe. -- core executive acts to me. there is such a possibility as an unlawful executive act. >> i'm not sure i understand your answer. it seems to me that in your brief today, when u ferred to the public authority defense, you said that is one of the built-in protections of why immunity is not necessary. because in some of these instances, when the presidt takes such action that the court has been asking, might this result in criminal osution, you say well he could raise this public authority defense. i'm saying isn't this public authory fense, if raised, doesn't it sound like a defee that says, well, as authorized by law, to discharge dysfunction? -- i was authorized by law, to discharge dysfunction? and therefore i acted lawfully. not criminallyiae. >> correct. >> did that involve into

motives, kind of like what justice gorsuch was asking? could you say i was acting within the scope of my autri by granting a pardon, removing a cabinet officer, but theth public authority defense might not apply because you had a bad motive in doing so? >> no, i don't think so, justice barrt. i think it operates based on jective facts disclosed to counsel. counsel du pvides the advice. in this case the department of justice, and it is an objectively valid defense, a complete defense to prosecution. >> what would be so bad? one thing that strikes me as different, or one thing that is obviously different between the public autri defense and community is the interlocki appeal and having it resolved at the outset. what would be so bad about having a question kehat resolv at the threshold, having the and immunity? -- having it be an immunity? at the same meo 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 of jail free card. >> i understand at i think if the court believe -- the courtelieves that with the apopate way to craft presidential protections, it has the authority to craft proceduralul that implement its article two concerns. that said, public authority, we are calling it a defense, but under many statutes it is actually an exception to liability self. -- liability itself. wh you are really talking about is trying the general generally, in criminal cases, even cases that involve first amendment issues like threat statutes, the jury is the teinant of facts. and i have a little bit of ffulty with the idea of trying the whole public authority issue separalyo the judge and having that go up on interlocking tori appeal before you could get into a criminal case. that said, i wouldatr that

, reme in which the court altersof the procedural rules surrounding the president, then a total absolute blanket immunity that takes away the possibility minal prosecution, even if it is a re violation of the statute of attorney general advice and has no overriding public authority. >> y tnk it has to be a jury question? i wasn't necessarily prosg actually treating it as a defense that was going to be done at the outset and bjt to appeal, i was proposing wt about and immunity doctrine a true from the public autri defense of the department of justice that they thinwod otherwise apply? so just go with me on that for a minute. whwould it be so bad for it not to be a jury question? it seems to me some of these article two concerns would be exacerbated by having it go to a jury rather than a judge. >> tnk some of them are judge questions that could b solved in the face of the indictment. if the department of justice

ever returned anndtment that said the issncof this pardon or this series of pardons constituteobruction of justice, i have a little difficulty hypothesizing it, but a motion to be made on the face -- could be made on the face of indictment that says article two includes congress from regular things activities, the indte needs to be dismissed. if the crtished to attach to thatinof a rule interlocutory appeal, that would be lesser safeguard than the one that my friend is proposing he other kinds of defenses really do intersect with the nel issue, and for those i have a much greater time seeing how the courts cou ilement that. an would there be cost going to trial? yes, there is no perfect system here. we're trying to design a system that preserves the effective functioning of the presidency and the accounbity of a former president under the rule of law and the perfect system that

calibrates all of those values obly has not been devised. i think that the system ate have works pretty well, maybe it needs a few ancillary rules. it is different from the radical proposal. >> i agree. that me ask you about state precions, because if the president had some kind of imnity that is implicit in article two, then that immunity woulprect him from state prosecution, awe. a lot of the protections you are talking about are internal protections that the federal governntas, protections and the partner justice which obviously are not applicable at the nytate and local jurisdictions across the country. wh do you have to say to that? >> that brings in the supremacy clause issue. thcot would run a supremacy clause analysis that would probably srtith basic principles, like mcculloch versus maryland. the at do not have the

authority to bird and federal functions and then would kind move through and re-nagel where the court said that a state murder prosecution oa deral official guarding the supreme court justice and who rea shot was not permissible. t court thought that you needed a more categorical rule for the states, i think the supremacy clause certainly it within the court's prerogative to determine that thprident, unlike all other officials, deserves more of a robust federal defense than what i have just devised. >> but it would still be a defense in thetates. that is my point. it is one thing to say the president, they are not going to be these prosecutions that were lically motivated that might what justice kavanaugh wasm. referring to. that might notar the day, but that is a concern. it is totally different when you take it outsidthdepartment of justice and its strtus and then you throw it out elsewhere.

the eacross the states, the idea of an immunity i think has a lot more purche you are talking about something that protects the former president from standing trial at a state and local level. >> so, i don't know that you would have to design a system in which the president would have to stand trial athstate and local level. it is certainly within the court's authority as a matter of supremy ause law to find and immunity. -- find an immunity. but we have been talking here about to someenh the distinction beeeofficial acts and private acts. >> yeah. >> that will have to be determined by some sort of a process. any immunity defense that the court noces can still be met by a state assertion that we are prosecuting private conduct, you are going to have to have some s. i think hinsome legal process is not a reason to cast aside a nuanced system that actually looks at what protections arnessary as opposed to what ulprovide the absolute maximum insulation

for former presidents, even if we acknowledge that it is highly prhylactic. >> totally agree, and i wasn't contrasting the absolute immunity rule, b sing if there is some sort of official private, the consequence of making immunity. and since you brought up the private act, this is my last question. i d asked on page 46 and 47, you say even if the court re inclined to recognize some immunity for a former president's offialcts, the indictment alleges substantial private conduct and you said that the private conduct would be sufficit. >> yes. >> the special counselas expressed some concern in speed and wanting to ve forward. the normal process would be for us to remand, if we decided that there were some official acts of iuny and to let that be sorted out below. it is another option f t special counsel to just proceed based on the private conduct and drop the official conduct. >> well, two things on that.

rsof all, there's really an integrated conspiracy here tha had different components as alleged in the indictment. working with privateawrs to achieve the goals raud, and as i said fo, reaching -- the petitioner reaching f official powers to try to make the conspiracies more likely to succeed. weou like to present that as an integrated picture to the jury so that it sees t conduct and why each stepof the occurred. that said, ithcorporate to -- if the court were to say that the elector scheme is prat reaching out to statofcials as a candidate is private, trying to exploit the violen after january 6 by calling senators and sayg ease delay the certification proceeding is private campaign activity, we still think contrary to what my friend said that we could introde e actions of the justice department, the efforts to pressure the vice president

for their evidentiary values filling the defendant's knowledge and intent and we would take a jury instruction that would say, you may not impose criminal culpability for the actions that he took, however, you may consider it insofar as it bears on knowledge and intent. that is the usual rule with protected speech, under wisconsin v. mitchell for exame. my friend analogize this as a speech for debate clause but we don't think the speech for debate clause has any applicability here. it is a very explicit constitutional proctn that says senators and representatives shall not be questioned in any heplace, so it carries an evidentiary component that is above and beyond whatever official act immunity he is seekin and the last thi iould say on this, we think that the concerns of the use of evidence of presidentiacouct that might otherwise be official and subject to executiverilege is already taken care of by united states v. nixon that balances the president's

interests d confidentiality against the need of the judicial systemll 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. >> thank you. >>usce jackson. >> just to pick up where justice barrett left o, think i heard you say that even if we decide here's something, a rule that is not the rule that efer, that is somehow separating out private from acts -- priterom official acts and saying that that should apply there is sufficient allegations inhendictment, in the government's view, that fall into e ivate acts bucket that the case should be alto proceed, correct? -- to proceed? >> correct. >> becau ian ordinary case, it wouldn't be s just because some of the acts are allegedly immunized, even if people agree thaso are immunized.

even if people agree that some are immunized. there are other acts that aren't, the case would go forw going back to the clear statement argument, understanding was that when a charged criminal statute is read narrowly in the presidential context did not apply to the esident, a constitutional question is being avoided.

you are doing that to avoid having to deal with the constitutional question. what is the constitutional question that is being avoided? s is just an application of this court ordinary construction oinal statute at if there is an available interpretation that would avoid a serious constitutional question, the preference is to -- >> my understand that what is being avoided in that situation is the question whether a former president can be held crim liable for doing the alleged act that is being asserted in that statute consistent with the constitution. so we look at the statute, it has gotten elements in it and we are saying if this statute and e elements applied to the president's conduct in situation, we have to answer the question in the president be held liable consistentthe constitution for that? >> the first stehe analysis, there's no ambiguity in those. similar words, any person applied to government officials. >> let's just assume. i guess i'm just trying to get constitutional question if we do that in the ordinary case, and what is confusing to me about this case is that we are not beinasd to avoid the constitutional question. 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 presto us. so i don't understand how the clear statement kind of analysis even works. logical to me for us to all the presidents cannot be prosecuted under any criminal statute wioua clear statement from congress tavd the question of whether or not the constitution allows them to be proseced have to have a reason, right? you have to have a rationale for applying the clear statement rule. >> there would have to be some ratithat is not evident in the text.e existing doctrine or just one data point for the court in thinking about how the clear statement rule works, a case about gratuities and the urt is probably familiar with, justice scalia wrote an opinion for unanimous urin which he used a hypothetical about what would happ ithe president

received a sports replica jersey at a typical white house event would that violate section 201c? the court offered a nsuction that it had to be because of an official act to avoid at problem. i think if there was such a well-reid understanding that presidents are not included in general federal criminal law unless a president is specifically named, which he is not, justice scalia woulha thought of that and some member of the court would have reacted. and none did. >> let me go on to ask about whatouake the partition's position to be in th ce. because we had a lot of talk about drawing the line, justice kavanaugh, jusceorsuch suggested that we should be thinking autirst, we have private vs. official. and then within official we have some thing that core as .

other acts as we try to figure out at what level the president is going to have immunity. but i took the petitioners argument in isase not to be inviting us to engage in that kind of analysis. i ought he was arguing that all official acts did immuty -- get immunity, and so i didn't understand us to be having to drill down on which official acts do. so my question is why isn't it enough for the purposes of this casegin with the petitioner s argued, to just answer the question of whether alofcial acts get immunity? >> that is enough d the court answered that question the wathat the government has submitted, that resolves the case. i want to make a claricaon that i may have left the court

with some uncertainty about. the official act analysis that my friend is talking about is thfigerald vs. nixon out of perimeter test which is extremely protective of the president. it is saying that everything the president does is a target for lawsts that is not a great thing and therefore they are all cut off >> anything that is official in the outer perimeteot subject to liability. so we don't have to then go wellweave an official, which within that might be subject to liability? noon the theory of absolute immunity. >> neither on the theory of absolute immunity or on our theory. on his theory, everything is protective. on ours, theres immunity but this is where i've dro -- where i have drawn the distinction.

there is application of constitutional challenges that you run through the youngstown framework and this court's customary meth oanalysis and you determine whether there is an infringement of article two. >> so what yo're saying is even if we reject the absolute immunity, it n as though the president doesn't have the opportunity to me e kinds of arguments that arise at the level of this particul a or this particular statute as a problem in rett? i think i hear you saying we should not be trying to, in the abstract, set up those boundaries ahead of times function of the blanket immunity to allow each allegation to be brought and then you would decide in th ctext? >> yes, with the additional note that petitioners never made that argumentndhink it would be ta district court to decide whether to go that route at is point in the litigation. you have put all of his eggs in the sote immunity basket. >> and if we see the question presenteisroader than that and we do say let's engage with core official and not core and y to figure out the line, is

this the right vehicle to hammer out that test? i mean, i had understood that most if not all of the allegations here, there's al no plausible argument athey would fall into core vs. not such that they are immune. >> we don't think therarany core acts that have been alleged in the indictments that would be off-limits as a matter of article two. >> so if we are going to do this kind of analysis, try to figure out what the line is, suld probably wait for a vehicle that actually presented in a way that allows us to testhdifferent 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. >>he final set of questions that i have has to do with w i do take as a very legima concern about prosecutorial abuse, about furpresidents

being targeted for things that they have done in office. i takehaconcern, i think it is a real thing. i wonder whether some of it ght also be mitigated by the fact that existing administrations have a self-interest in protecting the presidency, that they understand that if theyo ter the former guy, soon they are going to be a former guy and they will have created precedent that will be problematic. so i wonder if my comment on whether some of the caution from the justice department and the prosecutors and whatnot comes from an understathat they will soon be former president as well. >> absuty, and i would locate this as a structural arme that is built into the constitution itself. the executive branch, as this court knows, as execivbranch -- has executive branch

interests that at times asserts inppition to congress, so that the proper functioning of the presenis protected, and i believe that that value would be operative and u orative in anything as the mentis discharging a former president with a crime. >> and wld also say i think in ask you to comment, presidents are concerned about beininstigated and prosecuted, and it chose to some extent their ability to do what they want in office. that is a concern on one side. but can u mment on the concern about having a president unbounded while in office? a president who knows that h does not ultimately have to follow theawecause there is nothing more than political accountability in terms of impeacen we have amicus briefs from professor lederman who ss e president would not be prohibited by statute from

perjuring himself under oath on official mte, from corrupting or concealing documents to prevent them from being used in official proceeding, from supporting otrso commit perjury, bribing witnesses or public officials. gs on and on about a president in office with th knowledge they have no criminal accountability would do. sethat as a concern that is at least equal tthpresident being worried, so woiein his abity to function. so could you please talk about those competing ncerns? >> justice jackson, i init would be a change that no presidenhahad or has needed. i thk have also had a perfectly functioning system that has seen occasional episodes of presidential misconduct. the nixon era is a paradigmatic one. the indictme in this case

alleges another. for the most part, i believe that the legal regime and the constitutional regime that we have works, and to alter it poses more risks. >> thank you. rebuttal? >> i have nothing further, your honor. >> the case is submitted. ♪ >> friday night, watch c-span's 2024 campaign trail, a weekly roundup of's campaign coverage, providing a one-stop shop to discover what candidates are saying to voters, along with first-hand accounts from political reporters, fundraising data, and campaign ads. watch c-span's 2024 campaign trail friday night at 7:30 eastern on c-span, online at c-span.org, or download the podcast on c-span now, our free mobile app or wherever you get

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