this election suppression case against donald trump goes to trial ever or before the election. and it's important to point out, they've already made some decisions here that have had implications for that, with the way they've handled this case, with the way they rejected jack smith's request to take this case on an expedited basis, allowed the appeals process to play out. that's already caused a delay. they're asked to consider this question of whether a president has absolute immunity. i think we have new sound from former president trump. let's take a listen to that. >> we have a big case today. this judge isn't allowing me to go. we have a big case in the supreme court, our presidential immunity. a president has to have immunity. if you don't have immunity, you just have a ceremonial president. >> reporter: nobody thinks the supreme court -- very few legal experts think the supreme court is going to adopt mr. trump's view that a president has absolute immunity.

there is a possibility they may see some opportunity for some immunity for some presidential decisions. if they decide it that way, it may have to go back down to the district court which could cause further delay. >> i appreciate you not being sidetracked by somebody who apparently wants to scream louder than anybody else. catherine, the lower courts have been unanimous that trump cannot claim immunity. does that tell you something? >> i can't imagine they're going to say a former president has absolute immunity for criminal acts. what will be a win for donald trump is if they're saying we're sending it back to judge chutkan to determine which, if any he would have immunity for and which he would not. that's a win because that would delay the trial, which is already delayed. so what of course obviously jack smith and special counsel is hoping for, a majority of the court will just say, no, absolute immunity from criminal prosecution for a former president and clearly jack smith

would say this is private acts. >> everybody stay with us. the arguments are just getting underway. let's listen in to the u.s. supreme court. >> without presidential immunity from criminal prosecution, there can be no presidency as we know it. for 234 years of american history, no president was ever prosecuted for his official acts. the framers of our constitution viewed an energetic executive as essential to securing liberty. if a president can be charged, put on trial, and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president's decision-making precisely when bold and fearless action is most needed. every current president will face de facto blackmail and 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 this case. could president george w. bush have been sent to prison for obstructing an official proceeding or allegedly lying to congress to induce war in iraq? could president obama be charged with murder for killing u.s. citizens abroad by drone strike? could president biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies. the answer to all these questions is no. prosecuting the president for his official acts is an innovation with no foothold in history or tradition and incompatible with our constitutional structure. the original meaning of the executive vesting clause, the framers' understanding and intent an unbroken historical tradition spanning 200 years and

policy considerations rooted in the separation of powers all council against it. i welcome the court's questions. >> to your last point, could you be more precise as to the source of this immunity. >> the source of the immunity is principally rooted in the executive vesting clause in article 2 of -- >> how does that happen? >> the source of it, justice thomas, i think is as you described a separate opinion that the executive vesting clause does not include only executive powers laid out explicitly therein but encompasses all the powers that were originally understood to be included therein, and marbury against madison itself provides strong evidence this kind of immunity abroad principle of immunity that protects the president's official acts from scrutiny direct sitting in judgment, so to speak, of the article 3 courts that matches the original understanding of the executive -- >> how exactly would we determine what an official act

is? >> i point the court to two cases for that, obviously fitzgerald against nixon is the best guidance the court gives or the court adopted the outer perimeter test. in this court it engaged in analysis there that's very instructive here where it looked at the level of specificity at which the acts are described, in that case a civil case, here it would be the indictment -- >> what if you have let's say the official act is appointing ambassadors and the president appoints a particular individual to a country but it's in exchange for a bribe, somebody says i'll give you a million dollars if i'm made the ambassador to whatever. how do you analyze that? >> that i think would fall under this court's discretion in brewster where the court held with respect to legislative acts that bribery is not an official act, which matches the common law background. the way this court in brewster kind of sliced at the joint was to say accepting the bribe and the agreement are not official acts. that's private conduct.

appointment would be essentially unrestrictable power of this court. >> accepting the bribe isn't an official act, but appointing an ambassador is certainly within the official responsibilities of the president, so how could you -- how does your official acts or the official acts order, boundary come into play when it's going to be official assuming that the president is innocent but the whole question is whether he's going to be found innocent or guilty? >> again, i think brewster and johnson do address that or very persuasively. brewster and johnson say the indictment have to be expunged, there has been to be a determination of what's official, what's not official. >> you say, okay, we're prosecuting because you accepted a million dollars. they're supposed to not say what it's for because the what's for part is within the president's official duties? >> there has to be an independent ours of evidence for

that. keep in mind that this indictment charges what this court has described as unrestrictable powers of the president. the logical premise of this indictment is that congress by passing vague and general criminal statutes has purported to directly regulate the president's exercise of things like the exercise of employment and removal power, things like his ability to speak directly to the american public. core exercises of his authority under the recommendations clause to recommend to congress, members of congress the measures he thinks necessary and expedient, so you have an indictment in this case that goes right to the heartland of the president's powers that alleges a whole series of official acts and tries to tie them together by saying there's a private aim or a private purpose in that case, and that's a situation which of course could be alleged in virtually any indictment. >> counsel, it can be alleged but it has to be proven. mall up insay is a concept long viewed as appropriate in law

that there are some things that are so fundamentally evil that they have to be protected against. now, i think in your answer below, i'm going to give you a chance to say if you stay by it, if the president decides that his rival is a corrupt person and he orders the military, or orders someone to assassinate him, is that within his official acts for which he can give immunity? >> it would depend on the hypothetical. we could see that could well be an official act. >> it could and why, because he's doing it for personal reasons. he's not doing it at like president obama's alleged to have done it to protect the country from a terrorist. he's doing it for personal gain, and isn't that the nature of the allegations here, that he's not

doing them -- doing these acts in furtherance of an official responsibility. he's doing it for personal gain. >> i agree with that characterization of the indictment, and that confirms immunity because the characterization is that there's a series of official acts that were done for -- >> no, because immunity says even if you did it for personal gain, we won't hold you responsible. what do you -- how could that be? >> that's an extremely strong doctrine in this court's case law in cases like fitzgerald -- >> we go back to justice thomas's question, which was where does that come from? there are emeka here who tell us that the founders actually talked about whether to grant immunity to the president, and in fact, they had state constitutions that granted some criminal immunity to governors, and yet, they didn't take it up.

instead they passed an impeachment clause that basically says you can't remove the president from office except by a trial in the senate, but you can impeach him after. so -- or you can impose criminal liability. we would be creating a situation in which we would be saying -- this is what you're asking us to say, which is that a president is entitled not to make a mistake but more than that. a president is entitled for total personal gain to use the trappings of his office. that's what you're trying to get us to hold without facing criminal liability. >> your honor, i would say three things in response to that. first, the doctrine that

immunity does not turn on the improper motivation or purpose is something this court has reaffirmed in each -- >> that's absolute immunity, but qualified immunity does say whatever act you take has to be within what a reasonable person would do. i'm having a hard time thinking that creating false documents, that submits false documents, that ordering the assassination of a rival, that accepting a bribe and countless other laws that could be broken for personal gain, that anyone would say that it would be reasonable for a president or any public official to do that. >> your honor, as that court said very persuasively in fitzgerald, the allegation that this particular act would be done for an unlawful purpose or was unlawful could be made in every case, and therefore, if that were the doctrine that the allegation of improper purpose is what deprives the objective

acts of their immunity, then the immunity would have no purchase, and that's reflected in many of the other cases. >> so isn't the work, though, of the improper motive at least in the absolute immunity context, to tell us what are official acts and what are not? i mean, i'd understood that even in the -- first of all, your ask is absolute immunity, isn't it? >> that's our principal position. >> your position is you want the same kind of doctrine that we've applied in other contexts when we say an official has absolute immunity. my understanding is when we say that we mean for their official acts is that right? >> yes. >> any official acts in that world the real decision-making from the court's standpoint is whether or not something is an official or not, correct? >> that's an important determination. >> that is the determination in an absolute immunity world.

the principle is you get immunity for t correct? >> that is correct. >> so my question and i think the chief justice may have asked this at the beginning, is how do you determine what or maybe justice thomas, how do you determine what is an official act, and when we're talking about the kinds of scenarios that justice sotomayor brought up, one could say that when the president is using the trappings of his office to achieve a personal gain, then he's actually not acting officially, even if the doctrine was absolute immunity. so what do you say about that? >> two things in response to that. in 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 -- i'm just trying to assess, even if we had the doctrine of absolute immunity, that same allegation and the facts related to it would come in because the person would be arguing that he was not

acting in his official capacity. he wasn't doing something official. he was doing it personal, correct? >> i agree. the object ifr -- i'm not sure i agree, but the point i would make in response to that is in fitzgerald against nixon, this court emphasized that would result in an intrusive discussion or determination of the president's personal motives for every official act, and again, this is not just in the case of the presidency -- >> can i just ask you another quick question before my colleagues take it over here, at the beginning of your analysis when you were giving your opening statements, you were talking about, you know, you suggested that the lack of immunity and the possibility of prosecution in the presidential context is like an innovation, and i understood it to be the status quo. i mean, i understood that every president from the beginning of time essentially has understood that there was a threat of prosecution if for no other reason than the constitution suggested they can be prosecuted after impeachment, that, you know, the office of legal

counsel has said forever that presidents are amenable to a threat of prosecution, and they have continued to function and do their jobs and do all the things that presidents do. so it seems to me that you are asking now for a change in what the law is related to immunity. >> i would quote from what benjamin franklin said at the constitutional convention, which i think reflects best the founders' original understand and intent here. at the constitutional convention, benjamin franklin said history provides one example only of a chief magistrate who is subject to public justice, criminal prosecution, and everybody cried out against that. >> no, i understand, but since benjamin franklin everybody has thought, including the presidents who have held the office, that they were taking this office subject to potential criminal prosecution, no? >> i see the opposite. i see all the evidence going the other way. marbury against madison, mississippi against johnson discuss this broad immunity

principle -- >> so what was up with the pardon for president nixon? if everybody thought that presidents couldn't be prosecuted, then what was that about? >> well, he was under investigation for private and public conduct at the time, official acts and private conduct, and i think everyone has properly understood that the president since like president grant's carriage riding incident, everyone has understood that the president could be prosecuted -- >> counsel on that score, there does seem to be some common ground between you and your colleague on the other side that no man's above the law and that the president can be prosecuted after he leaves office for his private conduct, is that right? >> we agree with that. >> and then the question becomes as we've been exploring here today a little bit about how to segregate private from official conduct that may or may not enjoy some immunity, and i'm sure we're going to spend a lot of time exploring that, but the d.c. circuit in blazing game, chief judge there joined by the

panel expressed some views about how to segregate private conduct for which no man is above the law from official acts. do you have any thoughts about the test that they came up with there? >> yes, especially if it's understood through the lens of judge cats separate opinion is a very persuasive test. it emphasizes the breadth of that test. it talks about how action that are, you know, plausibly connected to the president's official duties are official acts and it also emphasizes if it's a close case or it appears there's considerations on either side that also should be treated as immune. those are the aspect of that that we'd emphasize as guiding the court. >> that left open the prospect of further proceedings and trial. >> exactly right, and that would be a very natural place for the court to take. the categorical holding of the d.c. circuit that there's no

such thing as official acts when it comes to -- >> you'd agree further proceedings would be required. >> that is correct. there would have to be -- i would point to anderson against creighton. there's looking at the indictment itself or in that case it was a complaint, but look at the charging document itself and see whether or not face of it this is alleging official acts and if not or it can't be determined, then there would be a factual proceeding, and all of that would have to occur before any other proceedings in the district. >> go ahead. mr. sauer, you began by explaining why you believe that immunity from criminal prosecution is essential for the proper functioning of the presidency. but my question is whether the very robust form of immunity that you're advocating is really necessary in order to achieve that result. so just to take one possible

alternative. suppose the rule were that a former president cannot be prosecuted for official acts unless no plausible justification could be imagined for what the president did taking into account history and legal precedent and the information that was provided to the president at the time when the act was taken. would that be sufficient, or if it is insufficient, why would it be insufficient in. >> that might be a much better role than what emerged in the lower courts. we think it would be insufficient. that long line of cases talking about using the president's motives and intrusive sort of consideration of the president's motives as transforming acts to official and unofficial would be -- would come into play, and of course once you can make that allegation, all of a sudden you've opened the door. you no longer have a per se clear bright rule, off

determination in every single case. >> what if it were not -- what if it did not involve any subjective element. it was purely objective. you would look objectively at the various relevant factors. >> that sounds to me a lot like blazing game, and especially viewed through the lens of the judge's separate opinion. that may not be different than what we're proposing to the court today. >> blazing game had to do with the difference between official conduct and private conduct, right? >> that's correct. i understood the court to be asking that. >> no, this would apply and just a possibility, i don't know whether it's a good idea or a bad idea or whether it can be derived from the structure of the constitution or the vesting clause or any other source, but this would be applied in a purely objective -- on purely objective grounds. when the president invokes an official power in taking the action that is at issue. >> yes, i believe -- the reason i think of blazing game is because it talks about an objective context specific determination to winnow out

what's official and what is purely private conduct. and again, with a strong degree of deference -- >> i'm sorry, if i understood justice alito, he's suggesting not that. he's suggesting whether even if it is an official act, whether you still grant immunity if that act is not plausibly viewed as within the realm of law. he can correct me if i'm wrong. >> that was the question. >> that, i think would be a superior rule than the category denial that emerged in the trial court here. >> i'm not quite sure why he used the word plausible because that seems to negate -- might as well give absolute if you're saying plausible because anybody could argue plausibility. we don't even require plausible.

we require reasonable in qualified immunity, so -- >> well, mine, one might argue that it isn't plausibly legal to order s.e.a.l. team 6, and i don't want to slander s.e.a.l. team 6 because they're -- no, seriously, they're honorable, they're honorable officers and they are bound by the uniform code of military justice not to obey unlawful orders. i think one could say it's not plausible that is legal, that that action would be legal, and i'm sure you thought -- i've thought of lots of hypotheticals. i'm sure you've thought of lots of hypotheticals where a president could say i'm using an official power and yet the power uses it in an absolutely outrageous manner. >> that if it were an objective determination may well be an interesting approach to the case. >> so apply it to the allegations here. what is plausible about the

president insisting and creating a fraudulent slate of electoral candidates. assuming you accept the facts of the complaint on their case, is that plausible that would be within his right to do? >> absolutely, your honor. we have the historical precedent we cite in the lower courts of president grant sending federal troops o'louisiana and mississippi in 1876 to make sure that the republican electors got certified in those two cases which delivered the election to rutherford b. hayes. >> knowing that the slate is fake, knowing that the slate is fake, that they weren't actually elected, that they weren't certified by the state, he knows all those things. >> the indictment itself alleges -- i dispute that characterization. the indictment affixes the word label to the so-called

fraudulent electors. that's a complete mischaracterization. on the face of the indictment it appears there was no deceit about who had emerged from the relevant state conventions and this was being done as an alternative basis. i want to address a more higher level point, a fundamental point, which is that as justice alito's question indicated, there's a whole series of structural checks other than criminal prosecution that are designed to deter these kind of, you know, outlandish scenarios or extraordinarily obviously illegal things, and that's been viewed in this court's opinions going all the way back to at least -- >> where do you think the d.c. circuit went wrong in how it determined what was official versus what's personal? >> well, i read the opinion below in this particular case as adopting categorical view. there is no immunity for official acts and therefore that's the end of the story. i don't think they went wrong in blazing game in the civil context when they engaged in the

same determination with respect to what's official and what isn't official. there we agree with most of what that opinion said. >> for some official acts that are not within the article 2 exclusive power, and so official acts but not within the article 2 exclusive power. eventual for those i would assume you would think a clear statement has to be required, a clear statement in the statute covering the president if the president's official acts are going to be criminalized. >> absolutely. obviously the issue is at the highest possible level when it comes to the unrestrictable powers as in this indictment -- >> i'm assuming the exclusive powers are walled off and can't be prosecuted before there's a lot of official powers that are not exclusive to the president under his article 2 authority, but for those, i understood you to be saying at a minimum there would need to be a clear statement in the statute referencing the president so that the president's on notice

and can conduct himself or herself accordingly. >> that's absolutely correct, that would be consistent with franklin and public citizen -- >> can i follow up on that -- >> can i ask you -- >> go ahead. >> you can see that private acts don't get immunity. >> we do. >> so in the special counsel's brief on pages 46 and 47 he urges us even if we assume -- even if we were to decide or assume that there was some sort of immunity for official acts that there were sufficient private acts in the indictment for the trial to go -- for the case to go back and the trial to begin immediately, and i want to know if you agree or disagree about the characterization of these acts as private. petitioner turned to a private attorney, was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. private? >> we dispute the allege but sounds private to me. >> caused the filing in court of a verification signed by petitioner that contained false allegations to support a

challenge. private? >> that also sounds private. >> three private actors, two attorneys, including those mentioned above and a political consultant helped implement a plan to obstruct the certification proceeding and petitioner and a co-conspirator attorney direct that had effort. >> you read it quickly. i believe that's private. i don't want to -- >> so those actually would not dispute. those were private and you wouldn't raise a claim that they were official. >> characterized. we would say as official is things like meeting with the department of justice to deliberate about who's going to be the acting attorney general of the united states. >> sure. >> communicating with the american public, communicating with congress about matters of enormous -- >> thank you, thank you. >> thank you, counsel, and what is the consequence in terms of going forward with your acknowledgment that those are private act as opposed to official acts? >> if you look at the indictment here, there's a bunch of acts that we think are just clearly official. there may be allegations that mostly relate to what the government has described here as

private aim or private end, and the court should remand ore address itself or remand for a brewster like determination, which is what's official and what's private. the official stuff has to be expunged completely from the indictment before the case can go forward. there has to be a determination on remand of what's official, a two-stage determination of what's private. >> how do you -- that's like a one-legged stool, right? i mean, giving somebody money isn't bribery unless you get something in exchange. if what you get in exchange is to become the ambassador to a particular country, that is official, the appointment, it's within the president's prerogatives. the unofficial part is i'm going to get a million dollars for it. so if you say you have to expunge the official part, how does that go forward? >> this particular indictment, we say virtually all the o'rert conduct is official, we don't believe it would be able to go forward. there could be a case where it would, but if you look at the government's brief in this case,

devise the indictment into things that other than the electors allegations don't really -- they haven't dispute that had they are official acts. we tie it all together by characterizing it as done, and these are the allegations the court just referred to by an improper private aim or private end, again that's their words and that runs loggerheads dead sense against this court's case. you don't look at immunity determinations, the improper motivation or purpose. >> thank you, justice thomas. >> in assessing the official acts of a president, do you differentiate between the president acting as president and the president acting as candidate? >> yes, we do, and we don't dispute essentially the blassingame discussion of that. that has to be done by objective determinations, not by looking at what was the purpose of what you did. and that's the most important

point. >> did you in this litigation challenge the appointment of special counsel in. >> not directly. we have done so in the southern district of florida case and we totally agree with the analysis provided by attorney general mees and attorney general casey and it points to a very important issue here because one of their arguments is of course that, you know, we should have this presumption of regular laity. that runs into the reality that we have here an extraordinary prosecutorial power being exercised by someone who has never nominated by the president or confirmed by the senate at any time, so we agree with that position. we hadn't raised it yet in this case when this case went up on appeal. >> analysis alito. >> when you say that the official acts should be expunged from the indictment, that in itself would not achieve very much unless evidence of those official acts were precluded at trial, so is that what you're saying, that the prosecution should not be permitted at trial

to prove the official acts as part of the conspiracies that are alleged in. >> absolutely. and we think that's just the clear implications of brewster and johnson and their discussion is in a very analogous context. >> thank you. >> i'm a little bit confused by that. if you have a scheme to defraud or a scheme to accept bribery, there's evidence from which you can infer that scheme, and one is that the appointment actually happened, it's an official act. you wouldn't expunge that as evidence. you would instruct the jury that there's no liability for the actual appointment, that the liability is for accepting the bribe. similarly here, i don't think the indictment is charging that the obstruction occurred solely because of conversations with the justice department. they're saying you look at all

of the private acts and you look in the context of some of the public acts, and you can infer the intent, the private intent from them. so i'm not sure that i understand why your problems couldn't be taken care of at trial with an instruction, if we believe -- if the court were to find -- i'm not even sure how they could, but if it were to find that some public acts could not be the basis of criminal liability? >> i think the best thing i can say to that is -- and i think this ties into the chief justice's question about a one-legged stool. brewster and johnson and subsequent cases like hall tow ski versus meaner essentially say that that this is a one-legged school problem. it will be difficult for some of these prosecutions to proceed. that is the implications of official immunity, which is dictated in the constitution here by the executive vesting

clause. >> justice kagan. can i continue on in justice barrett's vein a little bit and ask you about some of the allegations of the indictment and whether they're official acts or not in your view. so the defendant signed a verification affirming full selection fraud allegations made on his behalf and a lawsuit filed in his name against the georgia governor. >> i don't think we've disputed that that's official. i'm sorry, that that is unofficial. >> that that's unofficial. same for the defendant called the chairwoman of the republican national committee, asked her to gather electors in targeted states, falsely remitted to her that such elector's votes would be used only if ongoing litigation in one of the states changed the results in the defendant's favor. >> we have taken the position that that's official. >> that's official? >> yes. >> why would that be official? >> because the organization of alternate slates of electors is based on for example, the historical example that president grant is something that was done pursuant to and

ancillary and preparatory to the exercise of the core recommendation clause power. so when president trump -- >> couldn't he have taken this action just in the status of a candidate? >> the fact that he could have done so doesn't demonstrate that he did do so in this case. based on the allegations we think it's clear he did not, that this was done in an official capacity. >> the defendant asked the arizona house speaker to call the legislature into session to hold a hearing based on their claims of election fraud. >> absolutely an official act for the president to communicate with state official offense a matter of enormous federal interest and concern attempting to defend the integrity of a federal election to communicate with state officials and urge them to view what he views as their job under state law and federal law, that's an official act. >> well, attempting to defend the integrity of the election, that's the defense. the allegation is that he was attempting to overthrow an election. >> essentially exactly right, and neither allegation of what the purpose is should make a --

should make a difference as to whether it's immune. that is extremely strong precedent from this court. >> does it -- does it strike you as odd that your understanding of immunity goes way beyond what olc has ever claimed for a former president? >> i view the olc opinions here as strongly supporting us because anytime a congressional statute got anywhere near touching the president's prerogatives they said we're going to interpret the statute narrowly to avoid that. >> that's a different question. what they have always said is that sitting presidents get immunity, but former presidents, no. now, there might be a different argument made about whether a statute or whether a statute as applied to particular conduct is properly available against the president, but that's a very different argument than the immunity claim that you are making here, which olc has

definitively not supported. >> i don't know if i'd put it that way. i don't recall an opinion directly addressing it, but more fundamental to us, your honor, is the language of cases like marbury, and statements made by benjamin franklin at the constitutional convention. statements of george washington talking about the massive risk of factional strife and how that could destroy the republic and erect a new government on the ruins of public liberty. that's what we rely on principally here. i cite the olc opinions because of course what you see there is a very strong trend that if there's any statute that might -- in any way on the president's prerogatives, which they interpret it to avoid that. >> if a president sells nuclear secrets to a foreign adversary, is that immune? >> that sounds similar to the bribery example, likely not immune. if it's structured as an official act, he would have to be impeached and convicted first. >> what do you mean if it's structured as an official act. >> you'd probably have to have

more details to apply the blassingame analysis or even the fitzgerald analysis that we've been talking about. >> how about if a president orders the military to stage a coup? >> i think that as the chief justice pointed out earlier where there's a whole series of, you know, sort of guidelines against that so to speak, like the ucmj prohibits the military from following a unlawful act. if one adopted justice's alito's test, that would fall outside. if one adopts the fitzgerald test that we advance, that may well be an official act and he would have to be -- as i will say in response to all of these kinds of hypotheticals has to be impeached and convicted before he can be criminally prosecuted. i emphasize to the court -- >> well, he's gone, let's say this president who ordered the military to stage a coup. he's no longer president. he wasn't impeached, he couldn't be impeached, but he ordered the military to stage a coup, and you're saying that's an official act?

>> i think it would depend -- >> that's immune. >> i think it would depend on the circumstances whether it was an official act. if it were an official act, he would have to be -- >> what does that mean depend on the circumstances. he was the president. he is the commander in chief. he talks to his generals all the time, and he told the generals i don't feel like leaving office. i want to stage a coup. is that immune? >> if it's an official act, there needs to be impeachment and conviction before hand because the framers viewed the -- that kind of -- >> if it's an official act. is it an official act? >> if it's an official act it's -- >> is it an official act? >> on the way you described that hypothetical, it could well be. i just don't know. >> that answer sounds to me under my test it's an official act, but that sure sounds bad, doesn't it? >> it certainly sounds very bad, and that's why the framers have a whole series of structural checks that have successfully for the last 234 years prevented that very kind of extreme

hypothetical, and that is the wisdom of the framers, what they viewed as the risk that needed to be guarded against was not the notion that the president might escape a criminal prosecution for something sort of very, very unlikely in these unlikely scenarios. they viewed it much more likely and much more destructive to the public. >> the framers did not put on immunity clause in the constitution. there were immunity clauses in some state constitutions. they knew how to give legislative immunity. they didn't provide immunity to the president. and you know, not so surprising, they were reacting a monarch who claimed to be against the law. wasn't the whole point that the president was not a monarch and the president was not supposed to be above the law? >> i would say two things in response to that. immunity, they did put an immunity clause in in a sense. they put in the executive vesting clause which was originally understand to adopt the very broad language m

marbury versus madison. they did discuss and consider what would be the checks on the presidency and they did not say we would have criminal prosecution right there at the constitutional convention. benjamin franklin says we don't have that, that's not an option. everybody cried out against that as unconstitutional. the structural check we're adopting is impeachment. and they're very clear on that in pages 64 to 69 in the second volume. >> thank you. >> justice gorsuch. >> just returning to the chief justice's hypothetical about the ambassador sale and bribery. congress has a statute that specifically names the president and says he can be criminally prosecuted for bribery, presumably after he leaves office. outside the core areas that tis kavanaugh was talking about, when congress speaks clearly couldn't a statute like that congress provide a statute like that that would allow all manner

of evidence to come in to prove the case? >> i think our position is that would have to be an unofficial act, purely private contact for that prosecution to go forward. >> outside the core areas of executive power, if there is a clear statement from congress that something is unlawful and it applies to the president, i'm struggling to see why in that case perhaps the evidence could come in? >> the strongest possible case in our view is what you've described as kind of the core executive powers, the unrestrictable powers within the meaning of see la law. but again, the holding of brewster and johnson that we've relied on doesn't turn on how central it is of a legislative act. it just says if it's an official act, which applies to basically the outer perimeter test of fitzgerald against nixon, that doesn't come in. >> what would happen if presidents were understood fear that their successors would criminally prosecute them for their acts this office, whether

it's -- whether they're engaged in all the hypotheticals, i'm not going to go through them. it seems to me like one of the incentives that might be created is for presidents to try to pardon themselves. do you have any thoughts about that? >> that is -- i didn't think of that until your honor asked it. that is certainly one incentive that might be created. >> we've never answered whether a president can do that. happily it's never been presented to us. >> if the doctrine of immunity remains in place, that's likely to remain the case for those very issues. as fitzgerald very powerfully emphasized, the real concern is is there going to be bold and fearless action. is the president going to have to make a controversial decision where his political opponents are going to come after him the minute he leaves office. is that going to unduly deter, is that going to dampen the ar arder of that president, which is bold and fearless action in the face of controversy. >> and perhaps if he feels he

has to, he'll pardon himself every four years from now on. >> by that, as the court pointed out, wouldn't provide the security because the legality is something that's never been addressed. >> one of the checks and balances in addition to impeachment that you've discussed is subordinate liability. you don't contest that everybody following an unlawful order beneath the president of the united states can be immediately prosecuted, do you? >> i'm sorry, the court is asking whether they could be -- >> if the president gives an unlawful order, call in the troops, all the examples we've heard, every subordinate beneath him faces criminal prosecution, don't they? >> that is what morris said explicitly that coagitators could be prosecuted. there is an important caveat, there would have to be a statute that would govern that for them to be prosecuted. >> we've got lots of statutes. the criminal law books are replete, but i mean, do you

agree is that one check that's available? >> absolutely. and again, the only caveat that i was making is that if that statute was doing what marbury says you can't do, which is going after the subordinates to restrict a core executive function, the franklin clear state rule might be triggered and you might not be able to go after that president. i don't think the congress can say we can't go after the president directly, but we're going to criminalize the way the -- put in a criminal statute that says if you provide false information to congress in carrying out the president's recommendation powers, you can be immediately prosecuted. that would be a very difficult question. the fundamental point of drawing that distinction between the president himself and his co-age toy tors in the word of goob nor morris in the constitutional convention is a distinction. >> justice kavanaugh. >> follow-up on the olc opinions question as you read them and i think i read them, they articulate a clear statement rule as to this court's cases

for covering official acts and your point, i think, but i just want to underscore this is that none of the statutes alleged here or cited here have a clear statement covering the president, therefore meaning that the president can't be charged for any official acts under this -- under these statutes. >> that's absolutely correct. they're extended way beyond. >> that's separate from the question of what's official versus what's personal, but for that bucket that is official, there's no clear statement, period. >> that's right, and as to purely private conduct, we don't think thatinvoked. as to official acts, these statutes, the ones charged in the indictment are just way far afield from purporting to criminalize in clear terms the president's official acts. >> and then just to clarify this, the president's not above the law, the president's not a king, the founders thought that. i i think your point in response

to that is the president is subject to prosecution for all personal acts just like every other american for personal acts. the question is acts taken in an official capacity. >> that's correct. and even those of course if there was an impeachment and conviction could be prosecuted in our view. and we'd emphasize the whole series of structural checks in addition to that, which deter those -- and have successfully deterred presidential misfeasance for 234 years. >> on the source of immunity, it's not explicit in the constitution but also executive privilege is not explicit in the constitution. yet, in the united states versus nixon, the court unanimously said that the article 2 executive power in the constitution encompassed executive privilege and the same principle presumably would apply to executive immunity being encompassed in that competitive power. >> there's a letter from james

madison to thomas jefferson at the time of the founding where madison said, hey, as to removal power, they did not expressly take this away, so the 1789 congress understood it was left in place. it would have to be expressly taken away, which is the opposite of the presumption they're advancing here. >> and then lastly, i think you've acknowledged in response to other's questions that some of the acts in the indictment are private and your view is that some are official. is it your position then that that analysis of which is which should be undertaken in the first instance by the d.c. circuit or the district court? >> most likely a district court under the logic of anderson. >> thank you. >> justice barrett. >> so mr. sauer, you've argued that the impeachment clause suggests or requires impeachment to be a gateway to criminal prosecution, right? >> yes, i think thanks the plain meaning of that second phrase in the clause.

>> so there are many other people who are subject to impeachment, including the nine sitting on this bench, and i don't think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment. so why is the president different when the impeachment clause doesn't say so? >> someone very important has made the opposite suggestion as to the president himself, which is solicitor general, which is reaffirmed in the olc opinions on this where solicitor general bork in 1973 reviewed the historical materials and said the sequence is mandatory only as to the president. that is doj's view of the original understanding of the impeachment judgment clause, which is exactly our position. the sequence is mandatory only as to the president. keep in mind that the criminal prosecution of a president prior to impeachment contradicts in our view the plain language of the constitution but also hundreds of years of history, and what doj admits is the framers' intent.

we say that that practice, whatever its validity should not be extended at this novel context where it clashes with the constitutional structure. >> what if the criminal conduct isn't discovered until after the president the was out of office so there was no opportunity for impeachment? >> the framers assume the risk of under enforcement by adopting these structural checks. as justice scalia said the separation of powers prevents us from righting every wrong but it does sew that we do not lose liberty. >> the special counsel makes a point that i think is a pretty compelling one. you admit if the president were successfully impeached he could be criminally prosecuted after impeachment, right? >> assuming the prosecution was for the same conduct, in which he was convicted, not impeached. he must be convicted. that word conviction is right there in the clause. >> okay. granted. but you also say that these criminal statutes -- unless they explicitly mention the president don't apply to him, so how can you say that he would be subject to prosecution after impeachment while at the same time saying that he's exempt from these

criminal statutes. >> well, there are statutes as they can see where congress has purported -- >> two or three. >> they haven't done a comprehensive review. i think this looks like all they did was text search for president in 18 u.s. code. under franklin that's a very telling indication that the word president is not in the statute. is it necessarily a magic word requirement so to speak, but more funld mentally than that, they can see there are statutes that exist. in addition to that, much impeachment could occur as a result of private conduct. the impeachment judgment clause does do significant work by authorizing the subsequentcondu. so the impeachment judgment clause does do significant work by authorizing the subsequent prosecution of a president there because what the framers, if you look at what they're discussing in the constitutional convention concerns private conduct, which we concede. >> to pick up justice kagan's example of a president who orders a coup. let's say he's impeached and

convicted for ordering that coup and accept for sake of argument that was official conduct. you're saying he couldn't be prosecuted for that if there was not a statute that expressly referenced the president and made it criminal for the president. >> there would have to be a statute that made a clear statement that congress purported to regulate the president's conduct. >> thank you. >> justice jackson? >> so, i think i now understand better your position in your discussions with justice kavanaugh became clear you're saying that for the private acts of a president there is no immunity, but for the official acts of the president there is immunity. is that your position? >> i agree with that. >> all right. so, one thing that occurs to me is that this sort of difficult mind drawing problem that we're having with all of these hypotheticals, is this a private act or a public act, is being

necessitated by that assumption. because, of course, if official acts didn't get absolute immunity, then it wouldn't matter. we wouldn't have to identify which are private and which are public, correct? >> that in fact is the approach of the d.c. circuit. there is no determination that needs to be made. >> right, i'm making -- to the extent we're worried about how do we figure out it is private or public, we have to understand we are only doing that because of an underlying assumption that the public acts get immunity. so let me explore that assumption. why is it, as a matter of theory, and i'm hoping you can sort of zoom way out here, that the president would not be required to follow the law when he is performing his official acts? everyone else, everyone else, there are lots of folks who have very high powered jobs, who make a lot of consequential decisions, and they do so against the backdrop of potential criminal prosecution, if they should break the law in

that capacity. and we understand, and we know as a matter of fact that the president of the united states has the best lawyers in the world. when he's making a decision, he can consult with pretty much anybody as to whether or not this thing is criminal or not. so, why would we have a situation in which we would say that the president should be making official acts without any responsibility for following the law? >> i respectfully disagree with that characterization. the president absolutely does have responsibility, he absolutely is required to follow the law in all of his official acts, but the remedy for that is the question. could he be subject to personal vulnerability, sent to prison for making a bad decision after he leaves office? >> but other people who have consequential jobs and who are required to follow the law make those determinations against the backdrop of that same kind of risk. so what is it about the

president, i mean, i've heard you say, it is because the president has to be able to act boldly, do, you know, make kind of consequential decisions. i mean, sure. but, again, there are lots of people who have to make life and death kinds of decisions and yet they still have to follow the law and if they don't, they could be sent to prison, et cetera, et cetera. >> two things in response to that. both from fitzgerald, that's the very sort of reasoning that the court rejected in fitzgerald. >> fitzgerald was a civil situation in which the president actually was in a different position than other people because of the nature of his job, the high profile nature, and the fact that he touches so many different things, when you're talking about private civil liability, you know, anybody on the street can sue him, we could see that the president was sort of different than the ordinary person when you say should he be immune from civil liability from anybody who wants to sue him. but when we're talking about criminal liability, i don't understand how the president

stands in any different position with respect to the need to follow the law as he's doing his job than anyone else. >> he is required to follow the law. >> but he's not if there is no -- if there is no threat of criminal prosecution, what prevents the president from just doing whatever he wants? >> all the structural checks that are identified in fitzgerald and the whole series of the court's cases that go back to martin against mott, impeachment, oversight by congress, public oversight, there is a long series. and fitzgerald directly addresses this in the civil context and we -- >> i'm not sure that that's much of a back stop and what i'm guess more worried about, you seem to be worried about the president being chilled. i think that we would have a really significant opposite problem if the president wasn't chilled. if someone with those kinds of powers, the most powerful person in the world, with the greatest amount of authority could go into office knowing that there

would be no potential penalty for committing crimes, i'm trying to understand what the disincentive is from turning the oval office into, you know, the seat of criminal activity in this country. >> i don't think there is any allegation of that in this case and with george washington said, well, benjamin franklin said we view the prosecution of chief executive as everybody cried out as unconstitutional. what george washington said is we're worried about factional strife -- >> let me put this worry on the table. 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're in office? it is right now the fact that we're having this debate because oec said presidents might be prosecuted. presidents from the beginning of time understood that's a possibility. that might be what has kept this office from turning into the

kind of crime center that i'm envisioning. once we say, no criminal liability, mr. president, you can do whatever you want, i'm worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he's in office. >> i respectfully disagree with that because the regime you described is the regime we operated under for 234 years. there has not been an expectation based on 234 years of unbroken political -- >> let me ask you another question -- let me ask you another question about this clear statement line of questioning. first of all, i didn't see you argue that below. i don't know -- i understand that you have that set of in your briefs here, but did you argue before the d.c. circuit about a clear statement with respect to statutes? >> yes, in our separately filed motion to dismiss based on statutory grounds, we argued this and a whole panel -- >> that's not the question presented in this case.

the question presented in this case comes out of your motion for immunity. to bring in now an argument that you didn't raise below it seems to me you forfeited it, no? >> i believe it is fairly included within the question presented. >> why? >> because the court expanded the question presented from what i -- >> not to statutory interpretation. that argument goes to statutory avoidance, you know, constitutional avoidance, statutory interpretation. you asked for immunity, which is a totally different thing. >> i think they're closely related logically. does immunity exist and to what extent does it and the argument is immunity at least exists to the extent it raises a great constitutional question that triggers the clear statement rule. >> that's circular. you use that argument to avoid constitutional questions. you are asking us a constitutional question here. so it doesn't even make sense to talk about clear statement and rule the way it has come up in the context of an immunity question.

but let me just -- let me ask you this about it, one more question, yeah, so, what is the argument that the president of the united states, who you say is bound by the law, is not on notice, that he has to do his job consistent with the law? i mean, to the extent the clear statement rule comes in at all, it is about the person not being on notice, so i guess i don't understand why congress, in every criminal statute, would have to say and the president is included. i thought that was the sort of background understanding that if they're enacting a generally applicable criminal statute, it applies to the president just like everyone else. what is the clear statement that would have to be made in this context? >> under franklin and under public citizen, congress has to speak clearly before it interferes with the president's powers and we have here an indictment that seeks to criminalize objective conduct that falls within the heartland of core executive authority.

>> thank you. >> thank you, counsel. >> mr. chief justice, and 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 immunize former presidents for criminal liability for bribery, treason, sedition, murder, and here, conspireing 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 therefore 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 petition petitioner's alleged misuse of 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 3 courts providing the ultimate check. the existing system is a carefully balanced framework. it protects the president but not at the high constitutional cost of blanket criminal immunity. that has been the understanding of every president from the framing, through watergate, and up to today. this court should preserve it. i welcome the court's questions.

>> mr. dreeben, does the president have immunity? are you saying there is no immunity, presidential immunity, even for official acts? >> yes, justice thomas, but i think that it is important to put in perspective the position that we are offering the court today. the president, as the head of the article 2 branch, can assert as applied article 2 objections to criminal laws that interfere with an exclusive power possessed by the president, or that prevent the president from accomplishing his constitutionally assigned functions. that is the constitutional doctrine that currently governs the separation of powers. what petitioner is asking for is a broad blanket immunity that would protect the president, a former president, from any criminal exposure, absent impeachment and conviction, which has never happened in our

history, and we submit that is not necessary in order to assure that the president can perform all of the important tasks that the constitution imposes in him. >> in the not so distant past, the president -- or certain presidents have engaged in various activity, coups or operations, like operation mongoose when i was a teenager and yet there were no prosecutions. why? if what you're saying is right, it would seem that that would have been ripe for criminal prosecution of someone. >> so, justice thomas, i think this is a central question. the reason why there have not been prior criminal prosecutions is that there were not crimes. and i want to explain why there are layers of safeguards that

assure that former presidents do not have to lightly assume criminal liability for any of their official acts. at the outset, there is a statutory construction principle that is applicable here. it arises when there is a serious constitutional question about applying a criminal statute to the president's acts. it is not, and i'm sure we will discuss this, that no statute can apply to the president, in his official capacity, absent a designation of the president in it, but there is a principle that if there is a serious constitutional question, courts will strive to construe the statute so that it does not apply to the president. in addition to that, the president, i think, has been mentioned earlier, has 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 itself represented a criminal violation, which i don't see as being a realistic option. if i can say one more thing, because you raised the question about potential overseas taking of life. and the office of legal counsel has addressed this quite specifically. there is a background principle of criminal law called the public authority exception to liability, and it is read into federal law unless congress takes specific action to oust it, which it never has done as far as i am aware. and in a case in which the president sought to engage in overseas activity that would result in the taking of life, olc did not say the federal murder statute doesn't apply. that would be the thrust of my friend's argument on clear statement. instead, olc went through an extensive analysis on why the

public authority defense would prevent it from being considered a violation of law to go after a terrorist, for example. >> well, mr. -- 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 laws. do you agree with that statement? >> i think it sounds chronologically true. but i want to underscore that the obligation of a president is to take care that the laws are faithfully executed. >> well, the -- i think it sounds chronologically true as well and that's the clearest statement of the court's holding, which is why it concerns me. as i read it, it says a former president can be prosecuted because he's being prosecuted. >> i would not suggest that that's either the proper

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

to the court of appeals or issue an opinion making clear that's not the law? >> well, i am defending the court of appeals judgment and i do think that there are layered safeguards that the court can take into account that will ameliorate concerns about unduly chilling presidential conduct. that concerns us. we are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith, for political animus, without adequate evidence, politically driven prosecution would violate the constitution, under wade versus the united states. it is not something within the arsenal of prosecutors to do. prosecutors take an oath, the attorney general takes an oath, so, i don't want to overstate -- your honor's concern with potentially relying solely on good faith. but that's an ingredient and then the courts stant ready to adjudicate motions based on

selective prosecution, political animus, this court relied on those very protections in the vance case just -- >> what concerns me is, as you know, the court of appeals did not get into a focused consideration of what acts we're talking about or what documents we're talking about because of its adoption of what you termed and i agree quite correctly as a chronological statement. the fact of prosecution was enough to take away any official immunity. the fact of prosecution, they had no need to look at what courts normally look at when you're talking about a privilege or immunity question. >> well, i think i would take issue, mr. chief justice, with the idea of taking away immunity. there is no immunity that is in the constitution unless this court creates it today. there certainly is no textual immunity. we do not submit that that's the end of the story.

the united states versus nixon wasn't a textually based case, nor nixon versus fitzgerald. what is important is 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. it is focused on legislative acts. it is not focused on everything that a congressman does. and it responds to a very specific historical circumstance that basically involved the two other branches, potentially harassing legislators and preventing them from doing their jobs. that's why it ended up in the constitution. nothing like that ended up in the constitution for the presidents, and that's because one of the chief concerns of the framers was the risk of presidential misconduct. they labored over this. they adopted an impeachment structure that separated removal

from office as a political remedy from criminal prosecution. this departed from the british model. the british model was you get impeached and criminally prosecuted and convicted in the same proceeding. the framers did not want that. they wanted a political remedy in case a president was engaging in conduct that endangered the nation. he could be removed. he can't be prosecuted while he's a sitting president. that's been the long-standing justice department position. >> mr. dreeben, you dispute the proposition that a former president has some form of immunity. but as i understand your argument, you do recognize that a former president has a form of special protection, namely that statutes that are applicable to everybody must be interpreted differently under some circumstances when they are applied to a former president. isn't that true? >> it is true because justice alito of the general principle

that courts construe statutes to avoid serious constitutional questions. and that has been the long-standing practice of the office of legal counsel in the department of justice. >> all right, so, this is more, i think, than just a quarrel about terminology, whether what the former president gets is some form of immunity or some form of special protection, because it involves this difference, which i'm sure you're very well aware of, if it is just a form of special protection, in other words, statutes will be interpreted differently as applied to a former president, then that is something that has to be litigated at trial. the former president can make a motion to dismiss. and may cite olc opinions and the district court may say, that's fine, i'm not bound by olc, and i interpret it differently, so let's go to trial. and then there has to be a trial, and that may involve

great expense, and it may take up a lot of time, and during the trial the former president may be unable to engage in other activities that the former president would want to engage in, and then the outcome is dependent on the jury, the instructions to the jury and how the jury returns a verdict, and then it has to be taken up on appeal. so, the protection is greatly diluted if you take the form -- if it takes the form 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 that are extremely difficult to achieve in a case where the conduct, misconduct occurs close to the end of a president's term, congress is unlikely to crank up the machinery to do it,

and if the impeachment trial has to occur after the president is left office, there is an open question about whether that can happen at all. so -- >> you're arguing against most far reaching aspects of mr. sauer's argument, right? >> that is correct. and let me turn then to why -- >> well, what about to unpack it a little more, do you agree that there is some aspects of article 2 presidential power that are exclusive and that congress cannot regulate and therefore cannot criminalize? >> absolutely. >> okay. for other official acts that the president may take that are not within that exclusive power, assume for the sake of argument this question that there is not blanket immunity for those official acts, but that to preserve the separation of powers, to provide fair notice, to make sure congress 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 olc opinion suggests. you have a little bit of a disagreement of that and what this court's case also suggests. >> justice kavanaugh, i would like to take all of those in certain 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's not in the statute and i don't think that's necessary in order to afford adequate protection for the president's valid article 2 functions. >> you said unless -- sorry to interrupt, i want to get this out and you can incorporate it in the answer, you said unless there is a serious constitutional question. >> right. >> well, isn't -- it is a serious constitutional question whether a statute can be applied to the president's official acts. so wouldn't you always interpret the statute not to apply to the president, even under your

formulation, unless congress had spoken with clarity. >> i don't think across the board that serious constitutional question exists on applying any criminal statute to the president. >> the problem is the vague -- obstruction and 371 conspiracy to defraud the united states can be used against a lot of presidential activities historically with creative prosecutor who wants to go after a president. >> well, let me try to -- >> that's the -- that's what we're talking about historically is the risk that -- and going forward, the risk. so you can take all of that. >> i think that the question about the risk is very serious. and obviously it is a question that this court has to evaluate. for the executive branch, our view is that there is a balanced protection that better serves the interest of the constitution. that incorporates both accountability and protection for the president and i want to

go through the protections that do exist. but perhaps it 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, it does not specifically name the president. >> assume that's personal. so -- >> i think that -- >> that's what brewster said. >> bribery statute 607 says the president. i got it in front of me. and so, there is -- there is that. let me just back up, though, just a second to what was a quick exchange with justice kavanaugh, i want to make sure i understand, did you agree there are some core functions of the executive presidential conduct that congress cannot criminalize? >> yes. >> is that a form -- we can call it immunity or call it they can't do it, but what is the difference? >> we call it, as applied

article 2 challenge that -- >> okay. okay. can we call it immunity, just for short-hand sake so -- i think we are kind of narrowing the ground of dispute here. it seems to me there is some area you concede that an official acts that congress cannot criminalize. and now we're just talking about the scope. >> i don't think it is a just, but i think it is a very significant gap between any official act and the small core of exclusive official acts -- >> i got that. but i want to explore that. okay. so, for example, let's say a president leads a mostly peaceful protest sit-in, in front of congress, because he objects to a piece of legislation that is going through. and it, in fact, delays the proceedings in congress. now, under 1512 c 2, that might be corruptly impeding an official proceeding. is that core?

and therefore immunized or whatever word or euphemism 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 the things that i would run through the youngstown analysis. and it is a pretty small set, but things like the pardon power, the power to recognize foreign nations, the power to veto legislation, the power to make appointments, these are things that the constitution specifically allocates to the president. once you get -- >> president then could be prosecuted for the conduct i described? after he leaves office? >> probably not. but i want to explain the framework of why i don't think that that would be 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 -- >> i thought you said -- that was my question. and you said it fell outside that core -- we'll call it immunity for simplicity sake. >> yes, i understand. there is a separate category -- >> why couldn't he be prosecuted for leaving a civil rights protest in front of the capital that delays a vote on a piece of important legislation? >> so, i think what you need to do is run through all of the very president specific protective layers of analysis. so, one of them is whether the statute would be construed not to apply to his conduct, even if it is 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 -- >> he could have given speeches against it, he did. but he left -- he did something

more, and it corruptly impeded and sought to influence an official proceeding. >> well, so i don't know -- we're starting with the layers, i think, of protection, and we're now down through whether the statute would be construed to apply to him. then there would be a question of -- >> assume it does. >> then there is the question of whether he has the state of mind necessary -- >> assume he does. nobody knows what corrupt intent means, we have been around that tree twice already. and maybe it means he knows he was doing well is what the government told us. >> perhaps. >> he knows he's doing wrong. he knows he shouldn't be up there blocking a congressman from -- >> let me get to the next layer then, which is that the president does have access to the attorney general to provide legal advice and regularly gets legal advice from the attorney general on the lawful scope of the president's activities. we can go down two tracks here. one, the attorney general advises him that as an incident of his article 2 authority and

in 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, mr. president, there is nothing in the language of this statute that carves you out. i don't see a serious constitutional question in it because you don't have to do that and i would advise you not to -- >> could he be prosecuted? >> no. >> if he gets a negative opinion from the attorney general, he still couldn't be prosecuted? >> i assume most presidents -- >> if he gets one and does it anyway, he could be prosecuted. >> if we're down at that level, what we're really asking is if the president is subject to the criminal law and our answer is yes, he is subject to the -- >> can we go back to the bribery statute. i, like you, understand that the only thing that is covered by

that is the president is barred from soliciting or receiving funds in any room or building in the united states. >> that is correct. extremely -- >> official building. it is a very limited mention. >> really i think -- >> so, as i understand this, there is two very limited provisions mentioning the president is included. >> that's right. >> a whole number of provisions that exclude the president, many, many, many more, that exclude the president, correct? >> it is a small number on both sides. >> now, justice barrett made the point if we say a president can't be included in a criminal law, unless explicitly named, then that would bar the senate from impeaching him for high crimes or misdemeanors, because that means that he's not subject to the law at all, correct? >> so, i think -- >> that's something you can't escape. >> i think what justice barrett was saying and we would agree

with it, under my friend's position, after impeachment he could be prosecuted. under statutory construction approach, there would be nothing to prosecute him for. >> that's the point. which is if he's not covered by the criminal law, he can't be impeached for it, for violating it. all right, now, could we go further on this clear statement rule? the situations, and you mentioned it earlier, in which we have looked to see if the president is covered is contextual, correct? >> correct. >> and what are the factors that generally we look at. i'm thinking specifically about whether the apa covers the president. >> correct. >> and what we did there was analyze what powers were being given to -- in the lawsuit, and et cetera, we looked at words, we looked at structure, we looked at separation of powers issues relating to our case law that said you can't direct the president to do anything and this would have been a subterfuge for that, correct? >> all correct.

>> all right. so, i don't know why two of my colleagues, how they would fashion a clear statement rule that would say when the law says any person can't accept the bribe, that that permits the president to do it. >> so, i agree, justice sotomayor, that that the way that this court has interpreted statutes that do carve out the president, justice kavanaugh asked about this, was very context specific. the franklin case basically involved a holding that we are highly unlikely to say the president is an agency, something that the government said would be a peculiar understanding of agency. when the fact it would be we review the president's decisions under statutes for abuse of discretion, which is a very extraordinary thing to do. i think even going back to marbury, perhaps the point on which i agree with my friend, marbury says discretionary acts of the president are not the kind of thing that the court

reviews. >> could i go back to your brief, and going back to what some of my colleagues have asked you, there appears to be some narrowing principles to the concept that the president is subject to all criminal laws and all situations. >> correct. >> you agree that if it affects core powers, then he would not be subject to any laws that attempted to limit the core powers, correct? >> that is correct. >> you're defining core powers as those specified by article 2? >> that is essentially correct, yes. >> all right. and the only words in the constitution is that have to do with the president and law is that he shall take care that the law be faithfully executed, correct? >> that is right. >> hard to imagine that a president who breaks the law is faithfully executing the law, correct? >> he has to execute all of the

laws. >> all right. >> mr. dreeben, the 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, he's subject to the criminal laws like anybody else? you don't think he's in a peculiarly precarious position? >> he's in a special position for a number of reasons, one is that he has access to legal advice about everything he does, he is under constitutional obligation to -- supposed to be faithful to the laws of the united states and the constitution of the united states. and making a mistake is not what lands you in a criminal prosecution. there has been some talk about the statutes that are issued in this 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, namely the certification of the next president -- >> well, i don't want to dispute the particular application of that, of 371, conspiracy to defraud the united states, to the particular facts here, but would you not agree that is a peculiarly open ended statutory prohibition? and that fraud under that provision, unlike under most other fraud provisions, does not have to do -- doesn't require any impairment of a property interest? >> it is designed to protect the functions of the united states government and it is difficult to think of a more critical function than the certification of who won the election. >> you know, i'm not -- 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 i think any of us would think a president needs to engage in order to fulfill his article 2 duties and particularly in a case like this one, i want to pick up on something that the court said earlier about the distinction between a public official acting to achieve public ends and a public official acting to achieve private ends. as applied to this case, the president has no functions with respect to the certification of the winner of the presidential election. it seems likely that the framers designed the constitution that way because at the time of the founding, presidents had no two term limit. they could run again and again and were expected potentially to want to do that.

so the potential for self-interest would explain why the states conduct the elections, they send electors to certify who won those elections and to provide votes, and then congress in an extraordinary joint session certifies the vote. 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 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? justice alito? >> could we briefly review the layers of protection you think exist? i'm going to start with what the d.c. circuit said. so, the first layer of protection is that attorneys

general and other justice department attorneys can be trusted to act in a professional and ethical manner, right? >> yes. >> how robust is that protection? i mean, most of the vast majority of attorneys general and justice department attorneys and we both served in the justice department for a long time are honorable people and they take their professional ethical responsibilities seriously. but there had been exceptions, right? both among attorneys general and among federal prosecutors. >> there have been rare exceptions, justice alito, but when we're talking about layers of protection, i do think this is the starting point and if the court has concerns about the robustness of it, i would suggest looking at the charges in this case. they -- >> i'm going to talk about this in the abstract because what is before us, of course, does involve this particular case, which is immensely important. 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, who is widely regarded as having abused the power of his office. would you agree with that? >> i would, but they are two officials in a long line of attorneys general who did not and in departments of justice that are staffed by multiple people who do adhere to their office and justice alito, if i could -- 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. i understand that, mr. dreeben.

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. >> 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, and they're not going to get out of the starting gate. >> there is the old thought about indicting a ham sandwich. >> yes, but i think -- >> you had a lot of experience in the justice department. you come across a lot of cases where the u.s. attorney or another federal prosecutor really wanted to indict a case and the grand jury refused to do so. >> there are such cases. yes. but i think that the other --

>> every once and a while there is an eclipse too. >> i think for the most reason is prosecutors have no incentive to bring a case to a grand jury and secure an indictment, where they don't have evidence to prove guilt beyond a reasonable doubt. >> former presidents enjoy all protections afforded other criminal defendants. we discussed that and that may be true at the end of the day. but a lot can happen between the time when an indictment is returned, and the time when the former president finally gets vindication perhaps on appeal. isn't that correct? >> it is correct, justice alito. 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, my friend says after impeachment and conviction we don't read the impeachment judgment clause that way, but it is common ground

that all former presidents have known they could be indicted and convicted and watergate cemented that understanding. the watergate smoking gun tape involved president nixon and hr halderman talking about and then deciding to use the cia to give a bogus story to the fbi to shut down a criminal investigation. >> mr. sauer and others 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 inter japanese americans during world war ii. couldn't that have been charged under conspiracy against civil rights? >> today, yes, given the court's

decision in trump versus united states in which the -- trump versus hawaii, excuse me, where the court said, coramatsu was overruled and the decision was made with the advice of his attorney general. >> is that really true? i thought attorney general thought there was really no threat of sabotage, as did jay edgar hoover. >> i think there is a lot of historical controversy. it underscores that that occurred during war time. it implicates potential commander in chief concerns, concerns about the exigencies of national defense that might provide and as applied article 2 challenge at the time. i'm not suggesting today. the idea that a decision that was made and ultimately endorsed by this court, perhaps wrongly, would support criminal prosecution under 241 which requires under united states versus linear that the right had

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 briefly on a couple of other things. one is the relevance of advice of counsel, i wasn't clear what your answer is. 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. this is a due process doctrine we were referred to in our brief, reply brief in garland versus cargill, we cited that authority of this court if a authorized government representative tells you 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 can -- who will reliably tell the president 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 that risk. the president nominates the attorney general. and the senate provides advice and consent. and these are the sort of structural checks that have operated for 200 years to prevent the kind of abuses that my friend fears going forward as a result of this once in history prosecution. >> on the question of whether a president has the authority to pardon himself, which came up earlier in the argument, what is the answer to that question? >> i don't believe the department of justice has taken a position. the only authority that i'm aware of is a member of the office of legal counsel wrote on a memorandum that there is no self-pardon authority. as far as i know, the department has not addressed it further and the court had not addressed it

either. >> when you address that question before us, are you speaking in your capacity solely as a member of the special counsel's team or are you speaking on behalf of the justice department which has special institutional responsibilities? >> i am speaking on behalf of the justice department representing the united states. >> now, how -- don't you think we need to know the answer to at least to the justice department's position on that issue in order to decide this case? because if a president has the authority to pardon himself before leaving office, and the d.c. circuit is right that there is no immunity from prosecution, won't the predictable result be that presidents on the last couple of days of office are going to pardon themselves from anything that they might have been conceivably charged with committing? >> i really doubt that, justice

alito. it presupposes a regime we have never had except for president nixon and as alleged in the indictment here. presidents who are conscious of being engaged in wrongdoing and try to shield themselves. no person shall be the judge in their own case. those are adequate deterrences think so that this kind of dystopian regime is not going to evolve. >> let me end with just a question about what is required for the functioning of the stable democratic society, which is something that we all want? i'm sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully, if that

candidate is the incumbent. >> of course. >> all right. now, if an incumbent, who loses the very close hotly contested election, knows that a real possibility after leaving office is not that the president is going to 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 is exactly the opposite, justice alito. there are lawful mechanisms to contest the results in an election. and outside the record, but i think of public knowledge

petitioner and his allies filed dozens of electoral challenges and 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 certify by a state, you need evidence, you need proof. there is an appropriate way to challenge things through the courts with evidence, if you lose, you accept the results, that has been the nation's experience, i think the court is well familiar with that. >> thank you. >> justice sotomayor. >> the stable democratic society needs the good faith of its public officials, correct? >> absolutely. >> and that good faith assumes that they will follow the law. >> correct. >> now, putting that aside, there is no fail safe system of

government. meaning we have a judicial system that has layers and layers and layers of protection for accused defendants, in the hopes that the innocent will go free. we fail, routinely. but we succeed more often than not in the vast majority of cases the innocent do go free. sometimes they don't and we have some post conviction remedies for that. but we still fail. we 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 is because we have destroyed our democracy on our own, isn't it in. >> it is, justice sotomayor, and

i also think that there are additional checks in the system. of course the constitutional framers designed a separated powers system in order to limit abuses. i think one of the ways in which abuses are limited is accountability under the criminal law for criminal violations. but the ultimate check is the goodwill and faith in democracy. and crimes that are alleged in this case that are the antithesis of democracy that is subverted undermine that. >> encouragement to believe words that have been somewhat put into suspicion here that no man is above the law, either in his official or private acts. >> i think that is an assumption of the constitution. >> justice kagan? >> i want to go through your framework and make sure i understand it. so, first, on the small category of things that you say have absolute protection, that they

are core executive functions. >> yes. >> what are those small categories? >> pardon power. >> pardon. veto. >> veto, foreign recognition, appointments, congress cannot say you can't appoint a federal judge who hasn't received a certain diploma, hasn't achieved a certain age. there are a few other powers -- >> is commander in chief? >> commander in chief is on the list, but i want to add to my answer on that that congress has substantial authority in the national security realm, congress declares war, raises armies, has power over the purse, that's -- >> that may be viewed as not really in that core set of functions, which nobody has any power, but the president over? >> yes, i think that there may be some aspects like directing troops on the field in which the president's power is completely unreviewable. >> okay. now, in the next category, where

we left the core set behind, but we're still in the world of official actions, and that's where you say there are various statutory construction rules that might come into play. >> correct. >> but you have characterized those as something different from just saying, oh, 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, you know, how that would look, how that analysis would look in a given case and in the course of responding to that, you know, i'm sort of thinking of something like the olc opinion, which says bribery. the president can be tried and convicted of bribery, evenbroob statutes that do not say the president. why is that true? >> that is true because there is no serious constitutional question that the president needs to engage in bribery in order to carry out his constitutional functions, and the office of legal counsel

pointed out that bribery is enumerated in the impeachment clause, so it falls outside of anything that could be viewed as inherent in the need of article 2 to function. >> do you think the premise of that olc opinion was that the bribery was simply not official? >> no. >> or is the premise that the bribery was official and still the president could be prosecuted for it? >> i think that bribery is the kind of hybrid that illustrates the abuse of public office for private gain that we think is of the kinds of things that should be not held to be immune. in a bribery case, the public official cannot extract the bribe without the official power to offer as the quid or the pro, the quo, actually, it really is a crime that can only be committed by public officials who misuse their power. and it was one of the things that was most mistrusted. many of the acts that are

charged in this indictment or that would violate federal criminal law similarly involve the misuse of official power for private gain. >> so if you were to say what the line is in this category, like, when it is that the statute should becluing preside prosecution and allowing it, what general principles should guide? >> so the general principles i think kind of emerge from looking at what the office of legal counsel has done. so, for example, with respect to a federal statute that prohibited appointments to courts of people within certain degrees of the office of legal counsel said this infringes on an important appointment power, it cannot be presumed that congress intended to do that because it would raise a very serious constitutional question. the president is out. then there are categories of statutes where the president is

in, like, for example, the grassroots lobbying statute that office of legal counsel wrote an opinion about that, and it said, for the president or other public officials to go out into the world and to promote their programs, that can't be what congress intended to prohibit. what it did intend to prohibit is using federal funds to gin up an art official grassroots campaign that gave the appearance of emerging from the people, but it was really top down. and the office of legal counsel said, the president and officials who carry out the president's mandates are subject to that statute. so that's a more nuanced one. and the third example i'll give you is the statute that would permit prosecution for contempt of congress. the office of legal counsel concluded that a good faith assertion of executive privilege as a reason for not providing information to congress would preclude prosecution because congress cannot be deemed to have altered the separation of

powers in such a manner. i think olc probably would have gone on to say if congress tried to do it, it would be deemed unconstitutional. but, again, this was a statute that did not specifically name the president, there are only two that do that. so, the entire corpus of criminal federal law, bribery offenses, sedition, murder, would all be off limits if it were taken to the -- to the extent that some of the questions have suggested and for the general principle, does it raise a serious constitutional question? and if so, to what extent here e 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 to overbreadth, infringe on the president's power? >> it may 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 clear it up? here it is, we have a case? what else could we do? how should we deal with this? there are lingering issues that go beyond the question of whether there's the kind of absolute immunity that the former president is invoking. >> i think the court has discretion to reach that issue even though justice jackson is totally right, it was not raised in the district court and it was not raised in the court of appeals. the analysis that i would use to get there is a fusion of a couple of principals. the court has often resolved threshold questions that are a prerequisite to an intelligent resolution of the question. in a case -- they turned to the

question whether the triggering condition for an anticipatory warrant had to be in the warrant. a precedent that bears some analogy to this is vermont natural resources agency versus united states exerill stephens. the question was whether a state agency was a person within the meaning of the false claims act. the second question was whether if the state agency was 11th amendment immunity kicked in. the court wrote an analysis why it could reach both questions, reaching the person question didn't expand the court's jurisdiction, and it made sense as a matter of constitutional avoidance to do that. there are considerations that cut against this. i want to be clear for overall government equities, we are not wild about parties who raise an immunity case that can be

presented to a court on appeal and smuggling in other issues. we would want to guide the court not to have an expansive approach to that issue. 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 branchs are aligned in believing this is an appropriate way to enforce the law. congress, by making the law, the current executive by deciding to bring it. since a building block of that submission is that congress did apply these criminal laws to official conduct, the court may wish to exercise its discretion to resolve that issue. >> one last set of questions, which has to do with the official unofficial line. you heard mr. sowers responses about what he thinks counts as

official here and unofficial here. i'm wondering what you took from his responses and also how you would characterize what is official and what is not official in this indictment. >> i think petitioner conceded there are acts that are not official that are alleged in the indictment. we agree with him on all of that. i disagree with him on everything else he said about what is official and what is not. organizing fraudulent slates of electors, creating false documentation that says i'm an elector, i was appointed properly, i'm going to send a vote off to congress that reflects that petitioner won rather than the candidate that actually got the most votes and who was ascertained by the governor and whose electors were appointed to cast votes, that is not official conduct. that's campaign conduct. i think that the d.c. circuit did draw an appropriate

distinction. a first-term president who is running for re-election can act in the capacity as office seeker or office holder. when working with private lawyers and a private public relations advisor to gin up fraudulent slates of electors, that's not any part of a president's job. >> i'm sorry, there's an allegation in the indictment that has to do with the removal of a justice department official. is that core protected conduct? >> we don't think that's core protected conduct. i don't think i would characterize that episode 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 one self-certified with private actors is a private scheme to

achieve a private end. many of the co-conspirators are private. for an incumbent president to use his presidential powers to try to enhance the likelihood that it succeeds makes the crime in our view worse. in the department of justice episode, it occurs very late in the election cycle after many other schemes had failed. at that point, the petitioner is alleged to have tried to pressure the department of justice to send false letters to the states claiming that there were serious election irregularities and they should investigate who they certified as a president. none of this was true. the department of justice officials said it's not true. we are not going to do that. at that point, petitioner is alleged to have threaten to remove the department of justice officials who are standing by their oath and replace them with another person who would carry it out. we're not seeking to impose

criminal liability on the president for exercising or talking about exercising the appointment and removal power. no. we're seeking to impose criminal liability is for a conspiracy to use fraud to subvert the election one means of which was to try to get the justice department to become complicit in this. the case would have been no different if petitioner were successful and he exercised the appointment and removal power and those fraudulent letters were sent. it would have made it more dangerous but would not have changed the crime. >> how do we think about conversations with the vice president? things that if you say it that way, it's clear that they would fall under executive privilege. how does that relate to the question that we're asking here? >> this is one of the most difficult questions for the department of justice. i want to explain why that is. if we are operating under a fitzgerald versus nixon lens and looking at this the way that we

look at things when there's 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 interfere with the president's conduct. if we put this 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? if you run through the indictment, you can find support for those two characterizations. the department of justice has not yet had to come to grips with how we would analyze that set of interactions. >> thank you. >> justice gorsuch. >> if you did -- i wanted to confirm. i thought i heard you thought the framework was appropriate.

>> largely, yes, justice gorsuch. we agree with the idea of the distinction between office holder and office seeker. we also agree that if it's objectively reasonable to view the activities as those of office holder, then the fitzgerald immunity kicks in. i think we would look more at the content of the actual interaction in order to make that determination at least on the facts of that case might be appropriate. >> can you give me an example of what you have in mind? i'm trying to understand what nuance you are suggesting. >> it was a favorable pro-government framework that we endorse. >> i would have thought. >> not here. we don't think that fitzgerald applies in the criminal -- >> 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 decision. let me offer a few thoughts that might clarify it. the decision focused on objective indications to try to see whether the president was acting as a campaigner as opposed to an office holder. i think that decision can also be made by looking at what the president actually said. let me illustrate that with an allegation i think -- >> briefly. >> in one of the interactions between petitioner and a state official, petitioner is alleged to have said, i need you to find me 11,000 votes and change. i think if you look