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 at that

content, it's clear that petitioner is acting in the capacity as office seeker, not as president. we would look at that content. >> okay. the test -- i'm focused on the legal test. i'm not hearing any objections to it. >> other than, i think that the d.c. circuit placed more content consideration off limits than i would. >> all right. i wanted to understand, on the core immunity or whatever word we use, that it seems to me we are narrowing the ground of dispute here considerably, do we look at motives, the president's motives for his actions? for example, he has more power as we discussed, but he might use them to enhance his election, his personal interests. is that a relevant consideration when we're looking at core powers? >> i am thinking of this more as looking at the objective of the activity as opposed to the

subjective motive in the sense that your honor is talking about. i think there's a lot of concern about saying an electoral motive to be re-elected. >> right. every first-term president -- everything he does can be seen through the prism by critics of his personal interest in re-election. so you -- i think you would say personal motivations off limits with respect to the core powers. >> probably -- with respect to core powers, those are things that can't be regulated, like the pardon and veto power. >> regardless of motive. >> correct. that's correct. >> then we're in the non-core powers where we are fighting over. what role do motives play there? one could remove an -- ask this first. is removing an appointee -- a presidential appointee, a core

power or non-core power? >> i might need to differentiate between the principal officers as regarded as having constitutional status of being removable at will from inferior officers where congress does have regulatory latitude to impose restrictions on removal. >> sure. put that aside. i understand that. >> putting that aside, yes, appointing a principal officer is a core power. i'm not prepared to say there's no potential regulation to say you can't do it to enrich yourself. >> bribery. but that's what i was wondering. do motives come into the core power analysis or not? i'm hearing -- i thought i heard no and now i'm hearing maybe. >> maybe might be move

appropriate. the department has not had to take a position on exactly how these core powers would be resolved under -- as applied constitutional analysis. none is involved in this case. >> i'm wondering -- i'm not concerned about this case so much as future ones, too. these non-core powers and maybe core powers where a president is acting with at least, in part, a personal interest in getting re-elected. everything he does, he wants to get re-elected. if you are allowing in motive to color that, i'm wondering how much is left of either the core or non-core powers. >> i would be fine with carving that out and deeming that to be something that's intrinsic in our electoral system. we're not talking about applying criminal law to somebody who makes an announcement this program will be good for the united states and somebody could come along and say, you did it

to get re-elected, leaving aside that violates a criminal law, i know the next question is, assume it does. i'm doubtful it does. i don't think criminal laws operate on motives as opposed to objectives and purposes. >> all right. intentions. reframe it as an intention. let's put that aside. >> i understand. putting that aside, that really to me falls in a very different category. it's also -- >> there's some motives or intents that are cognizable and others that aren't. it's awkward when we look at the injunction. you can't enjoin a president. you couldn't hold him in contempt. >> can i try one more time -- >> let me spin this out a second. it didn't matter what the

president's motives were. we're not going to look behind it. same thing in nixon. gosh, nixon versus fitzgerald, that's something courts shouldn't get engaged in, because presidents have all manner of motives. again, i'm not concerned about this case. but i am concerned about future uses of the criminal law to target political opponents based on accusations about their motives. whether it's re-election or who knows what corrupt means in 1512. we don't know what that means. maybe we will find out sometime soon. the dangerousness of accusing your political opponent of having bad motives. if that's enough to overcome your core powers or any other limits, reactions, thoughts. >> i think that you are raising a very difficult question. >> that's the idea. >> that is the idea. >> testing the limits of both

sides' arguments. >> i'm going to say something i don't normally say, which is that is not involved in this case. we don't have bad political motive in that sense. >> i understand that. i appreciate that. you also appreciate that we're writing a rule for the ages. >> yes. i would start by looking at the statutes and seeing what restrictions they do place on the president's conduct. for example, the statute that prohibits fraud to defeat the lawful function of the united states. the statute defines what the purpose is that the defendant has to have in mind. it has to be to defeat something that the united states is doing and it has to be by deception. i don't think that that gets us into the realm of motive hunting in the area where we are as concerned as the court would be about doing something that would undermine the presidency and the executive branch. 1512c2, we may have different views on the clarity and scope

of that statute. i think if the court does interpret corruptly as involving a consciousness of wrongdoing and elevates that to consciousness of illegality, then we are in a different realm. you don't have to worry about about prosecuting presidents for that. >> thank you. >> justice kavanaugh. >> this case has huge implications for the presidency, for the future of the presidency, for the future of the country, in my view. you have referred to the department a few times as having supported the position. who in the department, the president, the attorney general? >> the solicitor general of the united states. part of the way in which the special counsel functions is as a component of the department of justice. the regulations envision we reach out and consult. on a question that involves equities beyond this

prosecution, as the questions of the court -- >> it's the solicitor general? >> yes. >> second, like justice gorsuch, i'm not focused on the here and now of this case. i'm very concerned about the future. i think one of the court's biggest mistakes was morrison versus olesen. that was a terrible decision for the presidency and for the country. not because there were bad people who were independent counsels, but president reagan, president bush, president clinton's administration were really hampered in their view, all three, by the independent counsel structure. what i'm worried about is that that was -- let's relax article 2 a bit for the needs of the moment. i'm worried about the similar kind of situation applying here. that was a prosecutor investigating a president in

each of those circumstances. someone picked from the opposite party the current president and usually was how it worked. justice scalia wrote the fairness of a process must be judged on what it produced. you emphasized regularity of the department of justice. i think this applied to the independent counsel system and it could apply if presidents are routinely subject to investigation going forward. one thing is certain, it involves investigating one person. what would the reaction be if in an area not covered by the statute, the justice department posted a public notice inviting applicants to assist in an investigation and prosecution of a certain prominent person? does this not invite what

justice jackson suggested? to be sure the investigation must relate to the area of criminal offense specified by the statute. that is often and nothing prevents it from being very broad. it was referring to the judges. that's the concern going forward is that the system will -- when former presidents are subject to prosecution in the history of morrison versus olesen, tells us, it's going to cycle back and be used against the current president or the next president or and the next president and after that. all that, i want you to allay that concern. >> well, first of all, the independent counsel regime did have many structural features

that emphasized the independence at the expense of accountability. we don't have that now. even under that regime, justice kavanaugh, i think if you look at lawrence walsh's report, this goes on a fundamental point to consider. judge walsh said, i investigated these matters, the proof did not nearly come close to establishing criminal violations. we have lived from watergate through the independent counsel era without these prosecutions having gone off on a runaway train. >> i think president reagan and bush and clinton, whether rightly or wrongly, thought contrary to what you said. >> i think nobody likes being investigated for a crime. it didn't result in the kind of vindictive prosecutions that i think your honor is raising as a possibility. we have a different system now. i think there was a consensus

throughout washington that there were flaws in the independent counsel system. it lapsed. we are now inside the justice department with full accountability resting with the attorney general. the regulations now don't operate the way that the independent counsel regulations do. this court would have something to say about it if the independent counsel statute were revived. i'm not sure anybody is in favor of that. >> this is the mirror image of that as one way someone could perceive it. i take your point about the structural protections internally. like justice scalia said, i do not mean to suggest anything of the sort in the present case. i'm not talking about the present case. i'm talking about the future. another point, you said talked about the criminal statutes. it's easy to characterize presidential actions as false or misleading under vague statutes.

president johnson, statements about the vietnam war. say something is false, turns out to be false that he says about the vietnam war. 371 prosecution after he leaves office? >> i think not. this is an area that i do think that merits some serious and nuanced considerations. statements made by a president to the public are not really coming within the realm of criminal statutes. they have never been prosecuted. i realize the court can say, well, what if they were. then i think you get to what i would regard as a hard constitutional question that would probably guide the court away from trying to resolve today. although, i do think it's different from our case and distinguishable in important ways. you are dealing here with two branchs of government that have a paramount interest in the integrity and freedom of their interactions with each other. on the one hand, the president, of course, should be very free

to send usually his cabinet officials to testify to congress to provide them with the information needed to enact legislation and to make national policy. we're very concerned about anything that would trammel that. congress has an interest in receiving accurate information. at the least -- >> i agree. >> that would pollute -- >> i think it came up before. president ford's pardon, very controversial in the moment. >> yes. >> hugely unpopular. probably why he lost in '76. now looked upon as one of the better decisions in presidential history i think by most people. if he is thinking about, if i grant this pardon to richard nixon, could i be investigated myself for obstruction of

justice on the theory that i'm interfering with the investigation of richard nixon? >> this would fall into the small core area i mentioned to justice kagan and gorsuch of presidential responsibilities that congress cannot regulate. >> how about president obama's drone strikes? >> the office of legal counsel looked at this carefully and determined that, number one, the federal murder statute does apply to the executive branch. but the aiding and abetting laws are broad. it determined a public authority exception that's built into statutes and that applied particularly to the murder statute, because it talks about unlawful killing, did not apply to the drone strike. this is actually the way the system should function. the department of justice takes criminal law very seriously. it runs it through the analysis very carefully with established principles. it dock umentuments them and th

president can go forward. there's no risk of prosecution for that course of activity. >> thank you for your answers. >> justice barrett? >> i want to pick up with that public authority defense. i'm looking at the olc memo that david barren wrote. he describes the public authority defense citing the model penal code. there are a few definitions. i will highlight this. justifying conduct which is required or authorized by the law defining the duties or functions of a public officer, the law governing the armed services or lawful conduct of war or any other provision of law imposing a public duty. that sounds a lot like dividing a line between official and private conduct. i think it's narrower. i recognize it's a defense not an immunity. when we look at the definition of it, are you acting within the scope of authority conferred by law or discharing a duty?

it's narrower than nixon versus fitzgerald, but that's what it sounds like to me. >> i certainly understand the intuition that when you act outside of your lawful authority, you have gone on a frolicking detour, you are no longer carrying it out. i don't think that quite works for presidential activity. the only way that he could have implemented the orders is by exercising his commander in chief authority over the armed forces or his authority to supervise the executive branch. those seem like core executive acts to me. there's a possibility as an unlawful executive act. >> i'm not sure i understand your answer. i was thinking -- it seemed to me in your briefs and today, when you referred to the public authority defense, you said that's one of the built-in protections and why immunity is not necessary, because when the president takes such actions that the court has been asking, might this result in criminal

prosecution, you say he could raise this public authority defense. i'm saying, isn't this public authority defense if raised, doesn't it sound like a defense that says, well, i had -- i was authorized by law to discharge this function? >> therefore, i acted lawfully. >> therefore, i acted lawfully and am not criminally liable. >> yes. >> does that look into motives? this gets to what justice gorsuch was asking. can you say i was acting in the scope of my authority, be removing a cabinet officer, but the public authority defense might not apply because you had a bad motive? >> no, i don't think so. i think it operates based on objective facts disclosed to counsel, counsel then provides advice, in this case the department of justice, and it's an objectively valid defense. it's a complete defense to prosecution. >> what would be so bad -- one thing that strikes me as different -- one thing that's obviously different between the public authority defense and

immunity is an appeal and having it resolved at the outset. what would be so bad about having a question like that resolved at the threshold, having it be an immunity? the same kind of question that could be brought up as a defense later, but brought up at the threshold as immunity and then an appeal would be available and it would be a freedom from standing trial, but not a get out of jail free card. >> i understand that. i think that if the court believed that that was the appropriate way to craft presidential protections, it has the authority to craft procedural rules that implement its article ii concerns. that said, public authority -- we're calling it a defense, but under many statutes it's an exception to liability yourself. what you are talking about is trying the general issue. generally, in criminal cases, even cases that involve first amendment issues, like threat

statutes, the jury is the determinant of the facts. i have a little bit of difficulty with the idea of trying the whole public authority issue separately to the judge and having that go up on appeal with review of facts before you could ever get it forward into a criminal case. that said, i would prefer a regime in which the court altered some of the procedural rules surrounding the president than a total, absolute blanket immunity that takes away the possibility of criminal prosecution even if it was a core violation of the statute in the teeth of attorney general advice and has no overriding public fofocus. >> i wasn't necessarily proposing actually treating it as a defense that was done at the outset and subject to appeal. i was proposing, what about an immunity doctrine that drew from

the public authority defense that the department of justice thinks would otherwise apply? go with me on that for a minute. why would it be so bad for it not to be a jury question? it seems it would be exacerbated by having it go to a jury rather than a judge. >> i think some of them are judge questions that could be resolved on the face of the indictment if the department of justice ever returned an indictment that said, the issuance of this pardon or this series of pardons constituted obstruction of justice, i have a little difficulty hypothesizing it. a motion could be made that says, article ii precludes congress from regulating these activities, the indictment needs to be dismissed. if the court wished to attach to that kind of a rule appeal, then that would be a lesser safeguard than the one that my friend is proposing here. other kinds of defenses though

really do intersect with the general issue. for those, i have a greater time seeing how the court could implement that. would there be costs in going to trial? yes. there's no perfect system here. we are trying to design a system that preserves the effective functioning of the presidency and the accountability of a former president under the rule of law. the perfect system that calibrates all of those values probably has not been devised. i think the system we have works pretty well. maybe it needs a few ancillary rules. it's different than the radical proposal of my friend. >> i agree. let me ask you about state prosecutions. if the president has some kind of immunity that's implicit in article ii, then that immunity would protect him from state prosecution as well? >> of course. >> a lot of the protections you are talking about are internal protections that the federal government has, protections in

the department of justice, which obviously are not applicable at the many, many, many, many state and local jurisdictions across the country. what do you have to say to that? >> that raises a supremacy clause issue. the court would run a supremacy clause analysis that would start with basic principles. the states do not have the authority to burden federal functions and would then kind of move through where the court said a state murder prosecution of a federal official guarding a supreme court justice and who fired a shot was not permissible. if you court thought you need aid more categorical rule for the states, i think the supremacy clause certainly leaves it within the court's prerogative to determine that the president, unlike all other officials, deserves more of a robust federal defense than what i have described. >> it would still be a defense in the states.

that's my point. it's one thing to say, the president -- there are not going to be prosecutions that are politically motivated, things justice kavanaugh was referring to, one thing we have to worry about. it's totally different when you take it outside of the department of justice and its structures and then you throw it out elsewhere. the idea across the states, the idea of an immunity, i think, has more purchase if you are talking about something that protects the former president from standing trial on the state and local level. >> i don't know you would have to design a system in which the president would have to stand trial at the state and local level. it is within the court's authority as a matter of supremacy clause law to find an immu immunity. we have been talking about here about, at some length, the distinction between official acts and private acts. that will have to be determined

by some process. any immunity defense the court announces can still be met by a state assertion that we're prosecuting private conduct. you have to have process. having some legal process is not a reason to cast aside a nuanced system that looks at what protections are necessary as opposed to what would provide the absolute maximum insulation for former presidents even if we acknowledge that it's highly prophylactic. >> i agree. i was saying if there was some sort of official private, there are consequences towards -- about making immunity. since you bring up the private acts, this is my last question. i had asked about on page 46 and 47 of your brief, you say, even if the court were inclined to recognize some immunity for former president's official acts, it should remand. you said the private conduct would be sufficient.

the special counsel has expressed some concern for speed and wanting to move forward. the normal process would be for us to remand, if we decided there was some official acts and let that be sorted out below. it is another option for the special counsel to proceed based on the private conduct and drop the official conduct. >> two things on that. first of all, there's an integrated conspiracy here that had different components as alleged in the indictment. working with private lawyers to achieve the goals of the fraud and as i said before, the petitioner reaching for his official powers to try to make the conspiracies more likely to succeed. we would like to present that as an integrated picture to the jury so that it sees the sequence and gravity of the conduct and why each step occurred. that said, if the court were to say that the fraudulent elector

scheme is private, trying to exploit the violence after january 6th by calling senators and saying, delay the certification proceeding, is private campaign activity, we still think contrary to what my friend said that we could introduce the interactions with the justice department, the efforts to pressure the vice president, for their evidentiary value as showing the defendant's knowledge and intent. we would take a jury instruction that would say, you may not impose criminal culpability for the actions that he took. however, you may consider it insofar as it bears on knowledge and content. my friend said it's the speech and debate clause. it's a very. -- explicit constitutional

representation. it cares a component that's above and beyond whatever official act immunity he is seeking. the concerns of using presidential conduct that might be subject to executive privilege is taken care of by united states versus nixon. that balances the confidentiality against the need of the judicial system for all available facts to get to the truth. once that has been overcome, we submit that the evidence can be used even if culpability can't rest on it. >> thank you. >> justice jackson? >> to pick up where justice barrett left off. i think i heard you say that even if we decide here something -- a rule that's not the rule that you prefer, that is somehow separating out private from official acts and saying that that should apply here, there's sufficient allegations in the indictment,

in the government's view, that fall into the private acts bucket that the case should be allowed to proceed? >> correct. >> because in an ordinary case, it wouldn't be stopped just because some of the acts are allegedly immunized, even if people agree some are immunized, if there are other acts that aren't, the case would go forward? >> that is right. >> going back to the clear statement argument. i'm struggling with that argument. my understanding was that when a charged criminal statute is in the presidential context to not apply to the president, a constitutional question is being avoided. you are doing that to avoid dealing with the constitutional question. what is the constitutional question that is being avoided in those kinds of situations? >> a serious one. this is just an application of this court's ordinary construction of criminal

statutes that if there's an available interpretation that would avoid a serious constitutional question, the court's -- >> right. my understanding is that what is being avoided in that situation is the question of whether a former president can be held criminally liable for doing the alleged acts that is being asserted in that statute consistent with the constitution. we look at the statute. it has elements in it. we are saying, jeez, if this statute and those elements apply to the president's conduct in this situation, we would have to answer the question, can the president be held liable consistent with the constitution for that behavior, is that right? >> the first step in that analysis -- >> yes, please. >> but the first step, is there ambiguity. these statutes apply to any person, they apply to whoever. there's no ambiguity in those

faces. this court concluded similar words to any person apply to government officials. >> let's just assume that we -- i am trying to get at, we're avoiding a constitutional question if we do that in the ordinary case. what's confusing to me about this case is that we're not being asked to avoid the constitutional question. in fact, the question of whether or not the president can be held liable consistent with the constitution or does he have immunity is the question that's being presented to us. i don't understand how the clear statement kind of analysis even works. presidents cannot be prosecuted any under criminal statute without a clear statement from congress to avoid the question of whether or not the constitution allows them to be prosecuted. we would have to have a reason. we would have to have a

rationale for applying the clear statement rule. >> the court would have to have some rationale that's not evident in the existing doctrine or text. think about how the clear statement rule works. in the united states versus sun diamond, a case about gratuities that the court is probably familiar with, justice scalia wrote an opinion for a unanimous court in which he used a hypothetical about what would happen if the president received a sports replica jersey at a typical white house event, would that violate section 201c? the court offered a construction that it had to be for or because of an official act to avoid that problem. if there was such a well received understanding that presidents are not included in general federal criminal law, unless the president is specifically named, which he is not in section 201, justice scalia would have thought of that and some member of the court would have reacted and none did. >> all right. let me go on to ask about what

you take the petitioner's position to be in this case. we had a lot of talk about drawing the lines. justice kavanaugh and gorsuch suggested we should think about another ruling and that within -- first, we have private versus official and then within official now we have something about core acts versus other acts as we try to figure out at what level the president is going to have immunity. i took the petitioner's argument in this case not to be inviting us to engage in that kind of analysis. i thought he was arguing that all official acts get immunity. i didn't understand us to be having to drill down on which official acts do. my question is, why isn't it enough for the purposes of this case given what the petitioner has argued to just answer the

question of whether all official acts get immunity? >> that's enough. if the court answers that question the way that the government has submitted, that resolves the case. i want to make a clarification that i may have left the court with some uncertainty about. the official act analysis that my friend is talking about is the fitzgerald versus nixon outer perimeter test, which is extremely protective of the president. it's not looking at core versus ancillary. it's saying, everything the president does is a target for private civil lawsuits. that's not a great thing. therefore, they are all cut off. >> that's an absolute immunity kind of concept. anything that's official in the outer perimeter is not subject to liability. >> that's right. >> we don't have to then go, well, okay, we have the bucket of official, now let's figure out which within that might be subject to liability, not on the theory of absolute immunity,

correct? >> neither on the theory of absolute immuity or our theory. on his theory, everything is protected. our our theory, there's no immunity. this is where i would draw the distension. there are constitutional challenges you run through the youngstown framework. this court's customary method of analysis, you determine whether there's an infringement of article ii. >> what you are saying, even if we reject the absolute immunity theory, it's not as though the president is -- doesn't have the opportunity to make the kinds of arguments that arise at the level of this particular act or this particular statute has a problem in retrospect? i think i hear you saying, we should know be trying to, in the abstract, set up those boundaries ahead of time as a function of blanket immunity, allow each allegation to be brought and then we would decide in that context? >> yes. with the additional note that petitioner has never made that

argument. i think it would be up to a district court to decide whether to go that route at this point in the litigation. he has put all of his eggs in the absolute immunity basket. >> if we invite -- if we see the question presented as broader than that and we do say, let's engage in the core official versus not core and try to figure out the line, is this the right vehicle to hammer out that test? i understood that the most, if not all, but most of the allegations here, there's no plausible argument that they would fall into core versus not such that they are immune. >> we don't think there are any core acts that have been alleged in the indictment that would be off limits as a matter of article ii. >> if we were going to do this kind of analysis, try to figure out what the line is, we should probably wait for a vehicle that

actually printpresents in a way allows us to test the different sides of the stand and we would be creating, right? >> i don't see any need for the court to embark on that analysis. >> the final set of questions. a concern about prosecutorial abuse, future presidents being targeted for things that they have done in office. i take that concern. i think it's a real thing. i wonder whether some of it might also be mitigated by the fact that existing administrations have a self-interest in protecting the presidency, that they understand that if they go after the former guy, soon they will be the former guy and they will create precedent that will be problematic. i wonder if you might comment on whether some of the caution from the justice department and the

prosecutors and whatnot comes from an understanding that they will soon be former presidents as well? >> i think absolutely. i would locate this as a structural argument that's built into the constitution itself. the executive branch, as this court knows, has executive branch interests that it asserts in opposition to congress so that the proper functioning of the president is protected. i believe that that value would be operative and is operative in anything as momentous as charging a former president with a crime. >> i would ask you to comment on presidents are concerned about being investigated and prosecuted. it chills to some extent their ability to do what they want in office. that's a concern on one side. can you comment on the concern about having a president

unbounded while in office, a president who knows that he does not have to ultimately follow the law because there is really nothing more than, say, political accountability in terms of impeachment? we have amicus briefs here. a president would not be prohibited from perjuring himself, from suborning others to commit perjury. he goes on about things that a president in office with the knowledge that they have no criminal accountability would do. i see that as a concern that is at least equal to the president being worries -- so worried about criminal prosecution that he is limited in his ability to function. can you talk about those competing concerns?

>> i think we have had a perfectly functioning system that has seen occasional episodes of presidential misconduct. the nixon era is one. the indictment in this case alleges another. for the most part, i believe that the legal regime and the constitutional regime that we have works. to alter it poses more risks. >> thank you. >> thank you, counsel. rebuttal? >> i have nothing further, your honor. >> thank you, counsel. the case is submitted. >> the honorable court is now adjourned until thursday, the 9th of may. >> you have been watching

msnbc's special coverage of donald trump's historic claim for presidential immunity, absolute immunity. i'm andrea mitchell across the yard from the u.s. supreme court where oral arguments have just concluded. my colleagues join me from new york. jose, ana, you have been listening to the arguments. a sharply divided supreme court. arguments for the special counsel and donald trump of whether the president can be prosecuted after he or she leaves office. this was a messy case. there was pushback against the special counsel lawyer here. you could see the court and at least two justices that i counted, wanting to send it back -- not just to the appeals court but possibly the district court to argue over legal issues about immunity. >> indeed.

it's just been an extraordinary thing to be able to listen to this. there is a precedent setting requirement for what is going on today. the big question is which of the justices felt that this was something maybe they should be deciding on in a complete fashion or maybe send it back. >> i think what was interesting -- we started with the extremes. the lawyer for president trump coming out saying, the president has absolute immunity for official acts. you had the lawyer representing the government, special counsel, who brought the case in the d.c. election interference criminal charges in that indictment saying a president has no immunity. in fact the key quote from him was that it would be created today. there's no immunity unless this court creates it today. we sort of ended up somewhere in between as the questioning got underway.

a questioning and answer session that lasted nearly three hours. about two hours and 40 minutes with the man who was representing the government, the lawyer getting the most questions from the justices. i think we have our legal minds who can tell us where this is headed. he was the lawyer for the government. >> joining us now is former manhattan district attorney catherine christian. your takeaways from this interesting day? >> interesting day. it could be wrong, is 5-4. >> what though? >> four of the justices, seem to be -- this is -- there's no absolute immunity for official acts. what jackson ended with, which i

thought was great -- she was like, wait a minute, the position of the trump lawyers is they don't want us to make a distinction between private and official, which means it gets remanded. their position is, absolute immunity. they are not telling us to make a distinction. they say absolute immunity. jackson is trying to bring it back to, no, we're not going to have a hearing on this. you had roberts who basically was concerned that the lower court said, he is being prosecuted, so, therefore, the prosecution is just. you had the concern of kavanaugh and that future former presidents could be targeted by their political opponents. you saw that lineup. that doesn't mean how it's going to happen. that's clearly from the questions. >> charles, what was your key takeaway? what stood out to you? >> i had a few. one of the things that i thought

was interesting was this framing around the notion of private acts versus official acts. why that became such a big issue for donald trump's defense team. i wonder whether now they might have thought to argue about qualified immunity as opposed to absolute immunity. given the framing of some of the questions from the justices, it may have boded better to do so in terms of creating that distinction. i think when you are looking at the questions that were asked by gorsuch as well as alito, it's very clear there is clearly a faction on the bench that wants to create a space that allows this argument to breathe further or at least them to kick it back down and allow that to be dealt with at a lower court. if you are looking in other directions, there are clearly justices like jackson who want to try and make this as narrow as possible. this was lawyering at the highest of levels. i want to remind everyone out there, the supreme court is not right because -- they are not last because they are always

right. they are right because they're always last. what i mean by that is, whatever results from this is something that we will all have to live with. it should be no indication that this was the perfect decision. it's going to be interesting to see how it shapes up. >> a magistrate said that. you are asking us to decide things for the ages. i think it's always interesting to bring it back to that. these decisions will have eternal repercussions. >> right. i kept wanting to pan out. i will defer to the lawyers. they know the law and particulars. i kept thinking about the scale of what we are witnessing. we're talking about the scope of presidential power. we are talking about the nature of separation of powers. we are at the heart of american democracy right now. we are watching this and its high drama. it's happening against the backdrop of protests throughout the country. the first time we have seen a president in a courthouse. this is really american democracy in the balance.

i am interested in what the lawyers say. but as an american, i'm trying to figure out what my gut is saying. where are we as a country? >> i think that when you are talking about some of the questions that were asked, particularly toward the end, the justices really understand. this is part of their job. they know that not only with respect to the gravity of their rulings, but then also the sustainability of the rules they create, they know how monumental this moment is. they probed as -- it was either alito or gorsuch who talked about, we have to test the limits of everyone's argument. meaning that, this has to be something that stands one way or the other. it's important not to read too much into what they ask, because whether you are a conserative or liberal justice, you have to make sure however you come down is something that will stand up

over the test of time. >> which goes back to this not just a case about one man, donald trump, but a case that could set precedent for all future presidents, both in and then out of office. it was justice kavanaugh who said this case has implications for the future of the presidency. >> here we are outside the court. someone who was just on the steps of the supreme court is our justice and intelligence correspondence ken dilanian. ken, this was a messy argument. there was so much pushback and a lot of arguments about whether even official acts excluded, whether private acts could be prosecuted. at one point justice jackson saying to the lawyer for donald trump, what was up then with the

pardon of president nixon? why would ford have pardoned president nixon if he didn't think that he could be prosecuted? what were the highlights to you? >> that's right. making the point that it has been the assumption that presidents could be prosecuted. i think we heard a majority of justices today expressing a desire to create some kind of limited immunity for official acts for presidents. you heard justice roberts expressing concern about the broad nature of the d.c. circuit court ruling which said, there's no immunity for any act whatsoever. conservatives seem to be concerned about that, and you heard specifically justice alito, justice kavanaugh raising concerns about essentially runaway prosecutors, unethical attorneys general prosecutors who are bringing improper cases against presidents. that was their concern. justice ketanji brown jackson had a concern on the others,

what happens when a president can't be prosecuted? would that make the oval office a center for crime. those are the contrasting views. what we've heard towards the end of the argument, whatever happens here donald trump is not out of the woods. even his own lawyer conceded that many of the acts alleged in this indictment were purely private acts, not official acts, and i didn't hear a majority of justices ready to immunize presidents for private acts. towards end of the argument, they seemed to be trying to forge a way, even if they decide there's immunity for official presidential acts, this case can go forward perhaps even without lengthy delays and it could be solved with a jury instruction saying he's liable for the private acts. we're still going to talk about the official acts, but he's not liable for those. we'll have to wait and see. also important will be when this court rules on this case. all of this plays into whether we could see a trial before the election, andrea. >> ken, one of the points that you just made was the concern going back to what justice

scalia, the late justice scalia had written about a malicious prosecution. ironically one of the people asking that very question was justice kavanaugh who worked for ken starr, one of those special counsels, but the law has changed. joyce vance is now with me, and has a lot of experience arguing appeals court cases and also a former prosecutor. joyce, what is your takeaway from this argument where they were all over the lot and when they even talked about remanding it to the district court, this could be a very long delay. >> it could be a long delay. this was a messy argument. no one really colored straight inside of the lines of any one argument, and so while there is clarity on a few issues, for instance, the fact that a president doesn't have immunity for purely personal acts, no one seemed to agree on what purely personal acts might look like. and that's the problem here. the court has to make decisions not just applying to president trump but also decisions that will apply to future presidents.

so there was a lot of concern about the future impact of the rules that they would create here. andrea, i think you're correct to say that that means we're looking at delay as the court perhaps requires the lower courts to make additional factual rulings, perhaps even legal rulings before a trial could go forward. >> it seemed to me also that there was no rebuttal from the lawyer for the president because i think that he had -- joyce, he had really won a majority of these justices not agreeing with the special prosecutor's argument. he did present an off-ramp, if you will, that they could limit it to the private acts. that even if they decided the officials acts did not have immunity. ken dilanian, joyce vance, we'll be joined shortly by neal katyal who was in the court. we want to hear from him. back to you, ana and jose. >> thank you so very much, andrea. i'm just wondering when there's so much talk about what is a public and what is a private

act, right? and the questions that the magistrates were asking were geared towards determining really what is a private act, what is a public act when really, i mean, if you look back through history, american presidents have essentially acted as though they have absolute immunity when they are in the oval office on so many issues. >> absolutely, and i think it's really important also to understand that those very presidents also acted within the bounds of certain norms. they were committed to certain values and so what happens when you have an actor who inhabits the white house who has what seems to be unlimited executive power not bound by those norms. you end up in a situation where you have to clarify these sorts of matters in order to draw boundaries. >> it was justice sotomayor who talked about her bigger concern

not being, your honor, chilling future presidents from taking action because they don't have some kind of presidential immunity, but actually emboldening future presidents from doing whatever the heck they want because they are immune from a criminal prosecution, charles. >> but there's a very important linchpin in this distinction. private acts, official acts, criminal acts, and i think that that part has to be inserted from a legal perspective. we're not just talking about the execution of duties. we're talking about things that on another level would be considered to be criminal or you could be criminally charged, and that's important to understand. it's a very sort of important wrinkle that got lost between the lines. we're not just talking about anything that you do. we're talking about something that you do that we presuppose to be criminal. so for example, if you recall when they were talking about on both sides the notion of a president staging a coup, that

notion when they were questioning the government lawyer, the question then became, well, what's illegal about that? and so i think that that notion was really -- that's the piece that has to be remembered when we're making the distinction between official acts versus private. >> so katherine, what happens now going forward at the supreme court? what are the options and what's the timing? >> we wait for the decision, and will they do it fast? so this is april. they could possibly have it done by may, or they're going to wait like what usually happens is the end of june, so it's going to be on them, and you saw there was -- i'll call it a split of how this should be, it might be a long time because they each want to write their own decision. so it's -- they can and they've done this, they have had decisions come out quickly. think of bush v. gore, or they can wait and then we wait until june. and then it goes back to judge

chutkan. will it go back to judge chutkan to do a hearing on the private versus official or will it go back for trial, and will she be able to expedite it, meaning judge chutkan to at least start it before election day. that's going to be tough. >> given how the justices spoke about this being such a consequential case, again, for setting the path forward in the history of this country and really making a mark in the history books with this decision, i mean, do you see any possibility of them coming up with a unanimous decision and feeling like it has that sort of level of importance that they are unanimous? >> i highly doubt that there is many possibilities that would lead us to a unanimous decision, primarily because i don't necessarily know that they're all going to be on the same page as to what question they're answering or what question they choose to answer. >> yeah, so would we have clarity? that's the thing. would any decision give us clarity to create that new precedent? >> i think that if we want to limit the question to whether

there exists absolute immunity under any and every circumstance, that might be the only thing that they choose to sort of address, and i don't necessarily think that they would address it in a way that would sort of wash their hands of it in the case, but in terms of settling that question in a way that allows donald trump's other prosecutions to move forward, i don't expect a unanimous decision there. >> are these questions that are going to be answered only for donald trump or for future presidents as well? >> future presidents, it should be, absolutely. i want us to really understand, today was historic. i would never imagine as a country boy from mississippi being at a moment like this one. i mean, what we heard today is just mind blowing at the scale in which our democracy is on the table at this point, catherine. what do you think? >> and donald trump is right now sitting in manhattan on trial. >> that's the other news. >> for criminal behavior, so it's like supreme court and he's actually a defendant on trial in manhattan right now. >> how do you see the outcome of

this decision impacting these other cases? because, again, this was involving the one case, the d.c. election interference case. that's where this originated, this question of presidential immunity. of course donald trump has also argued presidential immunity in a couple of other cases. we know the one in georgia as well as his other federal case involving the classified documents. will this decision set the tone for the direction those other cases go? >> very possible that it could depending on how it's decided and what it's decided upon. it may create the space for his attorneys to go in mar-a-lago and go in georgia and try and make the argument. this at a minimum could potentially provide donald trump with the delay that he is looking for to make sure that he avoids going to trial on anything else before the election, and for him, that is the win that he's looking for both personally and politically. >> and so yeah, for folks that have been watching this all morning, the conclusion is that

this specific case is not going to be decided in the short-term. >> it might. they can make it happen. >> short-term meaning what? how quickly can they do? >> a few weeks. they could do that if they want to, but expect maybe june. i think of bush v. gore, remember how quickly that was decided, and that was clearly a very important decision because it decided who was going to be president. >> all right. i think if there's any indication really quickly as to how soon they want to do it, they did push this argument out for several weeks, which doesn't suggest that they're in any sort of rush to come to a decision. >> catherine christian and charles coleman, eddie glaude, thank you so much for being with us. >> and thank you at home for being with us throughout this historic day. i'm ana cabrera. >> i'm josé diaz-balart. thank you for the privilege of your time. chris jansing, katy tour, andrea mitchell pick up our special coverage