that falls within the heartland of core executive authority. >> thank you. >> thank you, counsel. mr. >> may it please the court. this court has never recognized absolute criminal immunity for any public official. petitioner, however, claims that a former president has permanent criminal immunity for his official acts unless he was first impeached and convicted. his novel theory would immune eyes former presidents from criminal liability for bribery, tree son and murder and conspiring to use fraud to overturn the results of an election and perpetuate himself in power. such presidential immunity has no foundation in the constitution. the framers knew too well the dangers of a king who could do no wrong. they never devised a system to

check abuses of power especially the use of official power for private gain. here the executive branch is enforcing congressional statutes and seeking accountability for petitioner's alleged misuse of official power to subvert democracy. that is a compelling public interest. in response, petitioner raises concerns about potential abuses. but established legal safeguards provide layers of protections with the article iii courts providing the ultimate check. the existing system is a carefully balanced framework. it protects the president but not at the high constitutional cost of blanket criminal immunity. that has been the understanding of every president from the framing through watergate and up to today. this court should preserve it.

i welcome the court's questions. >> does the president have immunity or are you saying there is no immunity even for official acts? >> yes, justice thomas. but i think it is important to put in perspective the position that we are offering the court today. the president, as the head of the article ii branch can assert article ii objections to criminal laws that interfere with an exclusive power possessed by the president or that prevent the president from accomplishing his constitutionally assigned functions. that's the constitutional doctrine that currently governs the separation of powers. what petitioner is asking for is a broad blanket immunity that would protect the president, a former president, from any

criminal exposure absent impeachment and conviction, which has never happened in our history. we submit that is not necessary in order to assure that the president can perform all of the important tasks that the constitution reposes in him. >> in the not so distant past, certain presidents have engaged in various activity, coups or operations like operation mongoose when i was a teenager, and yet there were no prosecutions. why? if what you are saying is right, it would seem that would have been ripe for criminal prosecution of someone. >> justice thomas, i think this is a central question. the reason why there have not been prior criminal prosecutions

is that there were not crimes. i want to explain why there are layers of safeguards that assure that former presidents do not have to lightly assume criminal liability for any of their official acts. at the outset, there is a statutory construction principle that is applicable here. it arises when there is a serious constitutional question about applying a criminal statute to the president's acts. it is not -- i'm sure we'll discuss this -- that no statute can apply to the president in his official capacity absent a designation of the president in it. there is a principle if there is a serious constitutional question, courts will strive to construe the statute so that it does not apply to the president. in addition to that, the president i think has been mentioned earlier has access to advice from the attorney general and it would be a due process problem to prosecute a president

who received advice from the attorney general that his actions were lawful. absent the kind of collusion or conspiracy that it represented a criminal violation. which i don't see as being a realistic option. then if i can say one more thing because you raised the question about potential overseas taking of life. there is a background principle of criminal law called the public authority exception to liability and it is read into federal law unless congress takes specific action to oust it, which it never has done as far as i am aware. in a case in which the president sought to engage in overseas activity that would result in the taking of life, olc did not say the federal murder statute doesn't apply. that would be the thrust of my friend's argument on clear

statement. instead, he went through an analysis where the public authority defense would prevent it from being considered a violation of law to go after a terrorist, for example. >> the court of appeals below, whose decision we're reviewing, said quote, a former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the law. do you agree with that statement? >> i think it sounds true but i want to underscore that the obligation of a president is to take care that the laws are faithfully executed. >> i think it sounds true as well and that i think is the clearest statement of the court's holding which is why it concerns me. as i read it it says simply a former president can be prosecuted because he is being

prosecuted. >> i would not suggest that that's either the proper approach in this case or certainly not the government's approach. a prosecution does, of course, invoke federal criminal law. the allegations have to be presented to a grand jury, which votes upon the indictment. >> shortly after that statement in the court, the court's opinion, that's what they said but no reason to worry because the prosecutor will act in good faith and no reason to worry because a grand jury will have returned the indictment. you know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment and reliance and the good faith of the prosecutor may have not be enough in some cases. i'm not suggesting here. so if those are the only protections the court of appeals below gave and that is no longer

your position, you are not defending that position, why shouldn't we either send it back to the court of appeals or issue an opinion making clear that's not the law? >> i am defending the court of appeals judgment and i do think there are layered safeguards that the court can take into account that will -- that concerns us. we are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith, for political animus, without adequate evidence. politically-driven prosecution would violate the constitution under wake versus united states. it is not something within the arsenal of prosecutors to do. pros pros pros

that's an ingredient. then the courts stand ready to adjudicate motions based on selective prosecution and political animus. >> what concerns me is, as you know, the court of appeals did not get into a focused consideration of what acts we are talking about or what documents we're talking about because of its adoption of what you termed -- i agree quite correctly, as a statement. the fact of prosecution was enough to take any official community. they had no need to look at what courts normally look at when you talk about a privilege or immunity question. >> there is no immunity that is in the constitution unless this court creates it today. there certainly is no textural

immunity. we don't submit that's the end of the story. united states versus nixon wasn't that type of case. or fitzgerald. we endorse those holdings. what is important that no public official has ever had the kind of absolute criminal immunity that my friend speaks of even with respect to the speech or debate clause. it is very narrow focused on legislative acts, not focused on everything that a congressman does. it responds to a very specific historical circumstance that basically involved the two other branches potentially harassing legislators and preventing them from doing their jobs. that's why it ended up in the constitution. nothing like that ended up in the constitution for the presidents and that's because one of the chief concerns of the framers was the risk of presidential misconduct. they labored over this. they adopted an impeachment

structure that separated removal from office as a political remedy from criminal prosecution. this departed from the british model. that model was you get impeached and criminally convicted in the same proceedings. the framers wanted a political remedy in case a president was engaging in conduct that endangered the nation. he could be removed. he can't be prosecuted while a sitting president. that has been the longstanding justice department position. >> you dispute the proposition that a former president has some form of immunity. but as i understand your argument, you do recognize that a former president has a form of special protection, namely, that statutes that are applicable to everybody must be interpreted differently when applied to a

former president under certain circumstances. >> it is true because of the general principle they construe statutes to avoid constitutional questions and the longstanding in the department of justice. >> this is more, i think, than just a quarrel about terminology, whether what the former president gets is some form of immunity or some form of special protection because it involves this difference which i'm sure you are well aware of. if it is just a form of special protection. statutes will be interbreathed differently as applied to a former president. then that is something that has to be litigated at trial. the former president can make a motion to dismiss and may cite opinions and the district court may say that's fine. i'm not bound by olc and let's

go to trial. the trial may involve great expense and take up a lot of time and during the trial the former president may not be able to engage in activities that he would want to engage in and the outcome is dependent on the jury, instructions to the jury and how the jury returns a verdict and taken up on appeal. so the protection is greatly diluted if you take the form -- if it takes the form that you have proposed. why is that better? >> it is better because it is more balanced. the blanket immunity that petitioner is arguing for just means that criminal prosecution is off the table unless he says that impeachment and conviction have occurred. those are political remedies extremely difficult to achieve in a case for the conduct, misconduct occurs close to the

end of a president's term congress is unlikely to crank up the machinery to do it. if the impeachment trial has to occur after the president has left office there is an open question whether that can happen at all. >> you are arguing against most far reaching aspects of mr. sauer's argument, right? >> that's correct. let me turn then to why -- >> what about to unpack it a little more, do you agree there are some aspects of article ii presidential power that are exclusive and congress cannot regulate and cannot criminalize? >> absolutely. >> for other official acts that the president may take that are not within that exclusive power, assume for the sake of argument this question. there is not blanket immunity for those official acts, but that to preserve the separation of powers, to provide fair notice, to make sure congress

has thought about this, that congress has to speak clearly to criminalize official acts of the president by a specific reference. that seems to be what the opinions suggest. you have a disagreement with that and what this court's case also suggests. >> i would like to take all of those in turn because i don't think this court's cases speak that broadly. i definitely don't think the office of legal counsel opinions stand for this broad proposition that unless the president is specifically named, he is not in the statute and i don't think that's necessary in order to afford adequate protection for the president's article ii function. >> you said -- i want to get this out and incorporate it in the answer. unless there is a serious constitutional question. well, it's a serious constitutional question whether a statute can be applied to the president's official acts. wouldn't you always interpret

the statute not to apply to the president even under your formulation unless congress had spoken with some clarity? >> i don't think across the board is serious constitutional question -- >> the problem is the obstruction and 371, conspiracy to fraud the united states can be used against a lot of presidential activities historically with a creative prosecutor who wants to go after a president. >> let me try to balance that. >> that is what we're talking about historically is the risk. and going forward the risk. you can take all of that. >> i think the question about the risk is very serious. obviously it is a question that this court has to evaluate. for the executive branch, your view is that there is a balanced protection that better serves the interest of the constitution

that incorporates both accountability and protection for the president. i want to go through the protections that do exist. but perhaps it is worth returning at the outset to the statutory construction question that you raised. the office of legal counsel has said the offense of bribery applies to the president. it does not name the president, justice gorsuch, it does not specifically name the president. >> i assume that's personal. that's what brewster said. bribery statute seven says the president. i have it in front of me and so there is that. let me just back up, though, just a second what was a quick exchange with justice kavanaugh that i want to make sure i understand. did you agree there are some core functions of the executive president conduct that congress cannot criminalize.

we can call it immunity or can't do it. what's the difference? >> an applied article ii challenge. >> can we call it immunity so we're narrowing the ground of dispute here. it seems to me there is some area you concede that official acts that congress cannot criminalize. now we are talking about the scope. >> i don't think it's a just. a very significant gap between any official act and the small core of exclusive official acts. >> i got that. i want to explore that, okay? so, for example, let's say a president leads a mostly peaceful protest sit-in in front of congress because he objects to a piece of legislation that's going through. and it, in fact, delays the proceedings in congress. now under 1512.c2 that might be corruptly impeding an official

proceeding. is that core and therefore immunized or whatever you want to use for that or not core and therefore prosecutable? without a clear statement that applies to the president. >> it is not core. the core kinds of activities that the court has acknowledged are things that i would run through the youngstown analysis. it is a pretty small set. things like the pardon power, the power to recognize foreign nations, the power to veto legislation, the power to make appointments. these are things that the constitution specifically allocates to the president. >> a president could be prosecuted for the conduct i described after he leaves office? >> probably not. i want to explain the framework of why i don't think that would be prosecution that would be valid. first i think you need to run

through all of the sort of normal categories of analysis. is there a serious constitutional question that is posed by applying that statute to the president? if so, then you may well default to it does not apply at least on that pattern. >> that was my question. you said it fell outside that core we'll call it immunity for simplest -- why couldn't be he protested for leading a civil rights protest that delays a vote on a piece of important legislation? >> i think what you need to do is run through all of the very president-specific protective layers of analysis. one of them is whether the statute would be construed not to apply to his conduct even if it's not part of that small core of things that congress can't regulate at all. if it operates to prevent the president from fulfilling his article ii.

>> he could have given speeches against it. he did. he did something more and it corruptly impeded and sought to influence an official proceeding. >> i don't know, we're starting with the layers of protection and down through whether the statute would be construed to apply to him. then there would be a question. >> assume it does. >> i will assume it. then a question of whether or not he has a state of mind. >> assume he does. nobody knows what corrupt intent means. we've been around that tree once already. maybe it means he knows he was doing wrong is what the government told us. he knows he is doing wrong. he knows he shouldn't be out there blocking a congressman. >> let me get to the next layer. the president does have access to the attorney general to provide legal advice and regularly gets legal advice from the attorney general on the lawful scope of the president's activities. we can go down two tracks here. one is that the attorney general

advises him as an incident of his article ii authority and carrying out the functions of the presidency he can lawfully participate in that protest. it is kind of the first amendment analog to the president's official powers, which the court is exploring in other cases. alternatively the attorney general could advise him i'm sorry, there is nothing in the language of the statute that cavs you out. i don't see a serious constitutional question and i would advise you not to violate that. >> then he could be prosecuted? >> no. >> if he gets a negative opinion from the attorney general >> i assume -- >> if he gets one and does it anyway he could be prosecuted. >> what we're really asking is whether the president is subject to criminal law and our answer is yes. >> can we go back to the bribery

statute. i, like you, understand the only thing covered by that is the president is barred from soliciting or receiving funds in any room or building in the united states. >> that's correct. >> official building. a very limited mention. as i understand this, there are two limited provisions where the president is included. a whole number of provisions that exclude the president, many more that exclude the president, correct? >> it is a small number on poked sides of the question. >> justice barrett made the point if we say a president can't be included in criminal law unless explicitly named that would bar the senate from impeaching him for high crimes or misdemeanors. that means that he is not subject to the law at all, correct? >> so i think -- >> that's something you can't

escape. >> what i think justice barrett was saying and we would agree under my friend's position after impeachment he could be prosecuted. under his statutory construction approach there would be nothing to prosecute him for. >> that's the point. if he isn't covered -- can we go further on this clear statement rule? the situations, you mentioned it earlier, in which we have looked to see if the president is covered is contextual, correct? what are the factors to look at? whether the apa covers the president and what we did there was analyze what powers were being given to in the lawsuit and we looked at words and structures, we looked at separation of powers issues relating to our case law that said you can't direct the

president to do anything and this would have been a subterfuge for that, correct? >> all correct. >> so i don't know why two of my colleagues, how they would fashion a clear statement rule that would say when the law says any person can't accept a bribe that that permits the president to do it. >> i have agree, justice sotomayor the way the court has interpreted statutes that carve out the president. it was very context specific. the franklin case, basically involved a holding that we are highly unlikely to say that the president is an agency. something that the government said would be a -- we would review the president's decision under statutes for abusive discretion. that's extraordinary thing to do. going back to marberry where i

agree with my friend. it says discretionary acts of the president is not what the court reviews. >> could i go back to your brief and what some of my colleagues have asked you. there appears to be some narrowing principles to the concept that the president is subject to all criminal laws in all situations. >> correct. >> you agree if it affects core powers, then he would not be subject to any laws that attempted to limit those core powers, correct? >> correct. >> you are defining core powers as those specified by article ii. >> that's essentially correct, yes. >> all right. and the only words in the constitution is that have to do with the president and law he should take care the law is carefully executed. >> that's right. >> hard to imagine a president who breaks the law is faithful

plea executing the law, correct? >> he has to execute all of the laws. >> presidents have to make a lot of tough decisions about enforcing the law and they have to make decisions about questions that are unsettled, and they have to make decisions based on the information that is available. do you really -- did i understand you to say well, you know, if he makes a mistake he makes a mistake and subject to the criminal laws just like anybody else? you don't think he is in a precarious position? >> he is a special position for a number of reasons. one is that he has access to legal advice about everything that he does. he is under a constitutional obligation to -- supposed to be faithful to the laws of the united states and the constitution of the united states. making a mistake is not what lands you in a criminal prosecution. there has been some talk about the statutes that are at issue in in case.

i think they are fairly described as -- statutes, engaging in conspiracies to defraud the united states with respect to one of the most important functions, the certification of the next president. >> i don't want to dispute that particular application of that 371 conspiracy to defraud the united states to the particular facts here. wouldn't you agree it is a very open-ended statutory prohibition? that fraud under that provision, unlike under most fraud provisions, doesn't require any impairment of a property interest. >> it's designed to protect the functions of the united states government and difficult to think of a more critical function than the certification of who won the election. >> as i said i'm not discussing the particular facts of this case but it applies to any fraud

that interferes seriously with any government operation, right? >> so what the government needs to show is an intent to impede, interfere or defeat a lawful government function by deception and it has to be done with -- these are not the kinds of activities that any of us would think a president needs to engage in in order to fulfill his article ii duties and particularly in a case like this one. i want to pick up on something the court said earlier about the distinction between a public official acting to achieve public ends and a public official acting to achieve private ends. as applied to this case the president has no functions with respect to the certification of the winner of the presidential election. it seems likely that the framers designed the constitution that way because at the time of the founding presidents had no two-term limit.

they could run again and again and were expected to want to do that. so the potential for self-interest would explain why the states conduct the elections and send electors to certify who won those elections and to provide votes and then congress in a joint session certifies the vote. the president doesn't have an official role in that proceeding. so it is difficult for me to understand how there could be a serious constitutional question about saying you can't use fraud to defeat that function. you can't obstruct it through deception. you can't deprive millions of voters of their right to have their vote counted for the candidate who they chose. >> thank you, counsel. justice thomas. just -- >> could we reviews the layers

of protection you think exist? the first layer of protection is attorney generals and other attorneys could be trusted to act in a professional and ethical manner, right? >> yes. >> how robust is that protection? >> in the vast majority of attorneys general and justice department attorneys. we both served there for a long time are honorable people and they take their professional, ethical responsibility seriously. there have been exceptions both among attorneys general and among federal prosecutors. >> there have been rare exceptions, but when we talk about layers of protection i do think this is the starting point. the court has concerns about the robustness of it i would suggest looking at the charges in this case. >> i want to talk about this in the abstract because what is before us, of course, does involve this particular case,

immensely important. but whatever we decide is going to apply to all future presidents. so as for attorneys general, there have been two who were convicted of criminal offenses while in office. there were others mitchell palmer is one that comes to mind is looked at as abusing the power of his office. >> they are two officials in a long line of attorney generals who did not and departments of justice staffed by multiple people who do adhere to their office. the point i wanted to make about this case does go to the general proposition. the allegations about the misuse of the department of justice to perpetuate election fraud show exactly how the department of justice functions in the way that it is supposed to. petitioner is alleged to have tried to get the department of justice to send fraudulent letters to the states to get them to reverse electoral

results. >> i understand that. but as i said this case will have effects that go far beyond this particular prosecution. so moving on to the second level of protection that the d.c. circuit cited. federal grand juries will shield former presidents from unwarranted indictments. how many protection is that? >> well, it affords two levels of protection. one is the probable cause finding requires evidence. i think some of the fears about groundless prosecutions aren't supported by evidence. they aren't going to get out of the starting gate. >> the old song about indicting a ham sandwich. you have a lot of experience in the justice department. you come across a lot of cases where the u.s. attorney or another federal prosecutor really wanted to indict a case and the grand jury refused to do so.

>> there are such cases, yes. >> but i think >> every once in a while there is an eclipse, too. >> prosecutors don't bring cases if they don't have evidence. >> former presidents enjoy all the rights of criminal defendants. that might be true at the end of the day. a lot can happen between the time when an indictment is returned and the time when the former president finally gets an indication, perhaps on appeal, isn't that correct? >> it is correct, justice alito. i think we should also consider the history of this country. as members of the court have observed it is baked into the constitution that any president knows that they are exposed to potential criminal prosecution. after impeachment an conviction.

we don't read it that way but it's common ground that all former presidents have known that they could be indicted and convicted and watergate cemented that understanding. the watergate smoking gun tape involved president nixon and h.r.haldeman trying to shut down a criminal investigation. >> you have identified events in the past where presidents have engaged in conduct that might have been charged as a federal crime and you say well, no, that's not really true. this is page 42 of your brief. so what about president franklin d. roosevelt's decision to intern japanese americans during world war ii? couldn't have that been charged under 18usc241, conspiracy

against civil rights? >> today, yes, given the court's decision in trump versus united states in which the -- trump versus hawaii where the court said one was overruled and president roosevelt made that decision with the help of his attorney general. >> is that true? i thought the attorney general thought there was no threat of sabotage but so did hoover. >> it imply indicates potential commander-in-chief concerns about the -- and article ii challenge at the time. i'm not suggesting today. but the idea that a decision that was made and ultimately endorsed by this court, perhaps

wrongly, would support criminal prosecution which requires under united states versus lanier the right has been made specific so there is notice to the president. i don't think that would have been satisfied. >> we could go through other historical examples. i won't do that. let me touch on a couple of other things. one is the relevance of advice of counsel. i wasn't clear what your answer is. so if the president gets advice from the attorney general that something is lawful, is that an absolute defense? >> yes. i think that it is under the principle of entrapment bys stop el. we refer to that in our reply brief. this term at page 19 where we cited authority of this court that if an authorized government representative tells you that what you are about to do is lawful, it would be a root violation of due process to prosecute you for that.

>> won't that give presidents an incentive to be sure to pick an attorney general who will reliably tell the president that it is lawful to do whatever the president wants to do if there is any possibly conceivable argument in favor of it. >> i think the constitutional structure protects against this risk. the president nominates the attorney general and senate provides advice and consent. these are the sort of structural checks that have operated for 200 years to prevent the kind of abuses my friend fears going forward as a result of this once in history prosecution. >> on the question of whether a president has the authority to pardon himself, which came up earlier in the argument. what's the answer to that question? >> i don't believe the department of justice has taken a position. the only authority i'm aware of is a member of the office of legal counsel wrote on a memorandum there is no self-pardon authority.

as far as i know the department has not addressed it further. this court had not addressed it, either. >> when you addressed that question before you were speaking in your capacity as a member of the special counsel's team or are you speaking on behalf of the justice department, which has special institutional responsibilities? >> i am speaking on behalf of the justice department representing the united states. >> don't you think we need to know the answer at least to the justice department's position on that issue in order to decide this case? because if a president has the authority to pardon himself before leaving office and the d.c. circuit is right there is no immunity from prosecution, won't the result be that presidents on the last couple of days of office will pardon

themselves anything they might have been conceived with committing. >> i doubt that. it pre-supposes a regime we've never had for president nixon and alleged in the indictment here. presidents of conscious having engaged in wrongdoing and seeking to shield themselves. the political consequences of a president who asserted a right of self-pardon that has never been recognized that seems to contradict that a person should be the judge in their own case those are adequate deterrence so this dispopeian regime won't evolve. >> let me end with a question about what is required for the functioning of a stable democratic society. something we all want. i'm sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one,

leave office peacefully, if that candidate is the incumbent? >> of course. >> all right. now, if an en couple banti who loses an election knows a real possibility after leaving office is not that the president will be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country 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's exactly the opposite. there are lawful mechanisms to contest the results in an

election. and outside the record, but i think of public knowledge of petitioner and his allies filed dozens of electoral challenges and in my understanding is lost all but one that was not outcome determinative in any respect. there were judges that said in order to sustain substantial claims of fraud that would overturn an election result that is certified by a state you need evidence, you need proof. none of those things were manifested. there is an appropriate way to challenge things through the court with evidence. if you lose you accept the results. the court is well familiar with that. >> justice sotomayor. >> a stable democratic society needs the good faith of its public officials, correct? >> absolutely. >> that good faith assumes that they will follow the law. >> correct.

>> now putting that aside, there is no fail safe system of government. meaning we have a judicial system that has layers and layers and layers of protection for accused defendants in the hopes that the innocent will go free. we fail routinely but we succeed more often than not in the vast majority of cases, the innocent do go free. sometimes they don't and we have some post conviction remedies for that. but we still fail. we've executed innocent people. having said that, justice alito went through step-by-step all of the mechanisms that could potentially fail. in the end, if it fails completely, it's because we've destroyed our democracy on our

own, isn't it? >> it is, justice sotomayor and i also think that there are additional checks in the system. of course the constitutional framers designed a separated powered system in order to limit abuses. i think one of the ways in which abuses are limited is accountability under the criminal law for criminal violations. the ultimate check is the goodwill and faith in democracy. and crimes that are alleged in this case that are the ant -- >> encouragement to believe words somewhat put into suspicion here that no man is above the law, either in his official or private acts. >> i think that is an assumption of the constitution. >> justice kagan. >> i want to go through your 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, congress cannot say you can't appoint a federal judge who hasn't received a certain diploma or hasn't achieved a certain age. there are a few other powers. >> commander-in-chief. ? >> it's on the list but i want to add to my answer on that congress has substantial authority in the national security realm. congress declares war, raises armies, power over the purse. >> that may be viewed not in the core set of functions that nobody has any power but the president over. >> there may be some aspects like directing troops on the field in which the president's power is completely

unreviewable. >> now in the next category we've left the core set behind but still in the world of official actions, and that's where you say there are various statutory construction rules that might come into play. but you have characterized those as something different from just saying look, the statute doesn't say the president, therefore it doesn'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 which says bribery, the president can be tried and convicted of bribery, even part of the bribery statutes that do not say the president. why is that true? >> that is true because there is no serious constitutional question that the president

needs to engaged in bribery and the office of legal counsel pointed out bribery is enumerated in the impeachment clause. it falls outside of anything viewed as inherent in the need of article ii to function. >> do you think the premise of that opinion was that the bribery was not official? >> no. >> or is the premise the brie bribery was official and the president could be prosecuted. >> bribery ill straights the abuse of public office for private gain that we think it is opposed to the kinds of things that should be not held to be immune. in a bribery case, the public official cannot extract the bribe without the official power to offer as the -- it is a crime that can only be committed by public officials who misuse

their power and one of the things that was most mistrusted. many of the acts charged in this indictment or that would violate federal criminal law involve the misuse of official power for private gain. >> so if you were to say what the line is in this category, when it is that the statute should be understood as precluding presidential prosecution and when it is that the statute should be understood as allowing it, what general principles should guide? >> the general principles emerge from looking at what the office of legal counsel has done. so, for example, with respect to a federal statute that prohibited appointments to courts of people within certain degrees of -- the office of legal counsel says this infringes on appointment power of the president. the power to appoint federal judges. it cannot be presumed that congress intended to do that because it would raise a serious

constitutional question. the president is out. there are categories of statutes where the president is in. for example, the grassroots lobbying statute. office of legal counsel wrote an opinion about that. it said for the president or other public officials to go into the world and promote their programs, that can't be what congress intended to prohibit. what it did intend to prohibit is using federal funds to gin up a campaign that was top down. they said the president and officials who carry out the president's mandates are subject to that statute. that's a more nuanced one. the third example is the statute that would permit prosecution for contempt of congress. the office of legal counsel concluded that a good faith assertion of executive privilege as a reason for not providing information to congress would preclude prosecution because

congress cannot be deemed to have altered the separation of powers in such a manner. i have think olc probably would have gone on to say if congress tried to do it, it would be deemed unconstitutional. again, it was a statute that did not specifically name the president. there are only two that do that. so the entire corpus of federal criminal law including bribery, sedition, murder, would all be off limits if it were taken to the extent that some of the questions have suggested and for the general principle, does it raise a serious constitutional question? if so, to what extent can it be carved out individually and there may be some instances where the statutes here could be carved out and a particular act could be found to be protected. or does the statute across the board in such a wide range of applications somewhat analogous,

infringe on the president's power to say the president is -- >> those issues seem important and may occasionally be difficult. they also seem not really before us in the way justice jackson suggested earlier. what do you -- do you think they are before us? we should just clear it up? here it is, we have a case? what else could we do? how else to do with it that there are lingering issues that go beyond the question of absolute immunity that a former president is invoking. >> the court has discretion to reach that issue even though justice jackson is totally right, it was not raised in the district court or in the court of appeals. the analysis that i would use to get there is a fusion of a couple of principles. one is the court has often resolved threshold questions that are a prerequisite to an intelligent resolution of the

question presented. in a case like united states versus grubs the court reached out if warrants are valid whether the triggering condition had to be in the warrant. so that's one principle and then a precedent that bears some analogy to this is vermont natural resources agency versus united states stevens, the first question was whether a state agency was a person within the meaning of the false claims act and the second question was whether, if the state agency was 11th amendment immunity kicked in. the court wrote an analysis, the reaching the person question didn't expand the court's jurisdiction and made sense to do that. there are some considerations that cut against this and i want

to be clear that for overall government equities we aren't wild about parties who raise an immunity case presented to court on an appeal and smuggling in other issues. we would want to guide the court not to have an expansive approach to that issue. but the final thing that i would say about this is part of our submission to this court is that the article i branch and article ii branches a aligned in believing this prosecution will enforce the law. congress making the law, the current executive deciding to bring it. a building block is that congress did apply these criminal laws to official conduct court may wish the exercise its discretion to resolve that issue. >> one last set of questions which has to do with the official/unofficial line. you heard mr. sauers' responses

to both justice barrett's questions and my questions about what he thinks counts as official and what he thinks counts as unofficial here and wondering what you took from his responses and also how you would characterize what is official and what is not official in this indictment? >> so i think petitioner conceded that there are acts that are not official that alleged in the indictment and agree with him on all of that. i disagree with him on everything else that he said about what is official and what is not. organizing fraudulent slates of electors, creating false documentation that says i'm an elector, i was appointed properly and send a vote to congress indicates petitioner won rather than the candidate who got the most votes and ascertained by the governors and electors were appointed to cast votes. that's not an official conduct.

that is campaign conduct and i think the d.c. circuit in the another case did draw an appropriate distinction. a first term president running for re-election can act in the capacity as office seeker or office holder. and when working with private lawyers and private public relations advisor to gin up slates of electors is not part of a president's job. >> there is an allegation in the indictment that has to do with the removal of a justice department official. is that core protected conduct? >> we don't think it is core protected conduct. i don't think i would characterize that episode quite that way. we agree the department of justice allegations were use of the president's official power. in many 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 end. many of the co-conspirators alleged in the indictment are private. for an incumbent president to use the powers to succeed makes our view worse. it is late in the election cycle after many other schemes had failed and at that point, the petitioner is alleged to have tried to pressure the department of justice to send false letters to the states claiming that there are serious election irregularities and they should investigate who they certified as a president. none of it was true. the department of justice officials said it is not true. we aren't going to do that. at that point petitioner is alleged to have threatened to remove the department of justice

officials standing by their oath and replace them with another person who would carry it out. we aren't seeking to impose criminal liability on the president for exercising or talking about exercising the appointment and removal power, no. we're seeking to impose criminal liability for a conspiracy to use fraud to subvert the election. one means of which was to try to get the justice to become complicit. the case would have been no different if petitioner would have been successful and exercised the appointment and removal power and got through the fraudulent letters sent. it would not have changed the crime. >> how do we think about things like conversations with the vice president? things if you say it that way it's clear they would fall under executive privilege. how does that relate to the question we're asking here? >> this is one of the most difficult questions for the

department of justice. and i want to explain why that is. if we're operating under a fitzgerald versus nixon lens and looking at this the way that we looked at things when there is a private lawsuit filed against the president, we take a very broad view of what the outer perimeter of official presidential action is in order to be as protective of the president against private lawsuits that, as this court explained in nixon versus fitzgerald can affect the president's conduct of business. if we were putting it under a fitzgerald lens we would have to answer to the question was he acting in the capacity as office seeker or was he acting in the capacity as office holder? and if you run through the indictment, you can find support for those two characterizes and the department of justice hasn't yet had to come to grips with how we would analyze that set of interactions.

>> thank you. >> justice gorsuch. >> if you did i wanted to confirm, you thought a case was an appropriate one. >> we agree with the idea of the distinction between office holder and office seeker. we also agree that if it's objectively reasonable to view the activities as those of office holder, then the fitzgerald immunity kicks in. i think we would look more at the content of the actual interaction in order to make that determination than the other case suggested. the facts of that case might be appropriate. >> give me an example what you have in mind. i'm trying to understand the nuance. >> the one had a pro-government framework that we endorse.

not here. we don't think that fitzgerald applies in the criminal code. >> i understand that. putting that aside, the distinction between official act and private office seeker, their test is you think good enough for government work? >> on this one, the department hasn't taken a next step since the blasting game decision. that decision focused on objective contextual indications to see whether the president was acting as a campaigner as opposed to an office holder. i think that that decision can also be made by looking at what the president actually said. let me illustrate that with an allegation i think my -- >> briefly. >> in one of the interactions between petitioner and a state official, and the state officiti