what is their reaction against us. and to see after that accident happened to our colleagues, dozens of these just repeated and repeated and now you see when i am talking, one province -- one is in prison 25 days and the taliban told him that you have sent a documentary about us to the governor in the province and they are torturing him for 20 days and we don't know what's happening with his future or his life. and it's not just about him. there are dozens of women in the prison they are torturing them and nobody is talking about them. this is drawing a map about this situation we faced when we worked e attala ban and it

showing -- >> you can watch program in its entirety on c-span.org. right now the u.s. circuit court of appeals will hear oral arguments ether former president trump is immune from prosecution for his alleged role in the january 6 attack on the u.s. capitol. >> -- united statesamerica versus donald j trump. >> good morning. before you get started, can i just get a couple of things on the record. our jurisdiction was challenged by an amicus but from the brief you are not questioning our collaterder jurisdiction. >> correct. we defend the collateral order jurisdiction. >> and also you uld either abandon are not de the fifth

amdment double jeopardy argument before us. >> we have framed the doubled jeopardy argument from arising from the double impeachment clause but we have an argument if you go straight to the double jeopardy clause that that would revolt and reversal. focusing on the impeachment judgment clause and that incorporates principles of double jeopardy but we haveot said a straightforward directly under the double jeopardy clause in this court at that time. before that occurs then i want to speak to you re about jurisdiction because we still veto satisfy ourselves that we have the jurisdiction so even though you believe there is interlaboratory jurisdiction with respect to the collateral order doctrine, how do you place that in line with the asphalt case which specifically says in a criminal case your jurisdiction needs to stem from e constitution or be explicit, as well, and

statutory law. >> we have three responses to that if i may, your honor. one is if yolook at the language of midlanasphalt what justice scalia is discussing it is particularly right, a situation where the right is one of the legaand practical value of which would be destroyed if it were not violated before triaanthese claims of absolute immediately fall in e artland of that description of that right but that's been reversed by the supreme court. >> but it has to do with explicitly stating that because we don't have an explicit communication here with respect to anything in the constitution or statute >> i respectfully disagree with that. the doctrine of present immunity arises dict from article two section 1 in the exute vesting clause and it's reinforced by the plain language of the impeachment judgment clause which specifically refers to trial but remember what midland pht is talking about is a situation where the right not to be tried is at stake and distguhes that from the remedy from which is dismiss talking about the right not to be tried we have the clearest them as explicit reference to

trial in any of the clauses in which of the spring part is interlaboratory jurisdiction. >> but there been other circus at indicated on the issue of immunity midld phalt still applies bixby mcnabb presidential immunity wi respect. >> but you're making distinction. >> what i would say is this court decision narrows plicitly says right there and it says no sepati of showers claims may not -- but there are some that may bu then it goes on to say presidential immunity arising from the presidential-- it expressly contemplates therapy interrogatory dentt ction in this claim and that's further reinforced by thcourt subsequent situations where the ursaid, look. there's a speech and debate playg d another claim that it isn't arrived directly from the constitution but closely it can or analogous to. >> again about explicit. in the jump-- double jeopardy trial scenario yoha twice put in jeopardy so you cannot be tried again in that regard.

then in the spee a debate is a shall not be questioned? so the langua s explicit but you're not giving me anything that says explicitly in the references you cite. >> the plain languageofthe impeacen judgment clause this is only the party n pick a shall be subje t indictment, trial, judgment and punishment according tolaw. >> the negative infenc >> the beginning language supports from the beginning -- the natural and diry meeting of the impeachment judgment clause and at the argument that is explicit and also point out this court expressly held th not a magiwos requirement. it isn't that you've got to y right in the text of the constitution or statute this is a right not to betried it's the right ones formulate a has to explicitly formulate the right to be tried and that's why e language that is previously and dld asphalt is heavily emphasized by justice scalia is the situation where there is interrogatory appeal and the right to legal and practical

value is destroyed and not vindicated before trial. the similar language in cisneros and point at the government also h not challenge the court jurisdiction. ithas conceded. multi-met >> -- referred to the midland asphalt as a suggestion? >> i'm not aware of that. >> i believe yoarcorrect about that. and that's reinforced by this course kate law. returning to the merits, if i may, to thorize the prosecution of a president fo his official acts would open a pandora'bofrom which this nation may never recor. could george w. bush be prosecuted for obstruof an official proceeding for allegedly givifalse information to congress to

induce the to go to war in iraq under false pretenses? could president obama be potentially charged thurder for allegedly authorizing drone strikes targeting u.s.cizens located abroad? >> can i explore the implications of what you are arguing. i understand your position to be that a president is immune from criminal precion for any official act that he takes as president, even if that action is taken for an unlawful work on constitutional purpose. is that correct? >> with an important exception whicisif the president is impeached and convicted by the united states senate in a proceedi at reflects widespread political consensus, that would thize the prosecution under the plain language of the impeacen judgment clause. so yes without exception. >> so it seems to me there are a lot of things that might no go through that process becae it's quite a cumbersome process that requires the advent of a whole branch of government that

has a lot of dierent people involved and so in your view could a president sell rdons or sell military secrets? those are official acts. anfficial act to grant a pardon. it's an fial act to communicate with a foreign government in such a president would not be subject to criminal prosecution? >> the sale of pardons example is excellent because there were algations about a sale of apartment when it came to president clinton pardon of marc rich and the u. doj carefully dod for the reasons we have emphasized in hebrief not to prosecute president clinton with that because it raised concerns about whether t a president could be prosecuted for official ts was an op-ed in the naon review. >>yo position is he can't be prosecuted for that >> as long as it's an official t. in certain cases private contact against jones would be subject to prosecution as long his not in office? >> at a president ordered seal team six to assassinate a political rival? that's an official act.

>> it would have to be in would speedily be impeached and convicted before the criminal prosecution payment but if you re there would be no criminal prosecution of crimal liability for that? >> the chief juice opinion and e ain language of the impeachment judgment clause presuppose that. what the founders were concerned about --'s beaming i asked you s or no question. could a president who orre seal team six to assassinate a political rival who was not impehe, would he be subject to criminal prosecio >> if he were impeached and convicted fit ck >> so your answer is ? >> my answer is a qualified guests is a political process that would have to occur under the constituti ich would require impeachment and conviction by the senatein these exceptional cases ashe olc pots out. impeachment and conviction but what the founders were worried about then using criminal

prosecution to discipline presidents was what me madison calls in federalist number 47 the newfangledan artificial trees in spirit they weremo concerned about the abuse of the criminal process for political purposes to disable the presidency from factions and political opponents and that is exactly at we see in this case. >> i asked yoa series of hypotheticals about criminal actions that could be taken by a president and could be considered official acts and have asked you wod such a president be subject to criminal prosecution if he's not in peter convicted and your answer, your yes answer is no? >> i believe i idqualified yesterday is impeached and convicted first pick >> so he's not impeached or convicted. but that aside you are saying a president could pardons, could sell military secrets, coulorr seal team six to assassinate a political rival. >> military sixers stkes me

as something that may not be an official act in the sale of paons is something that is, historically but not precuted. >> -- communicating with an executive branch agcyis an official act and communicating with a foreign government is an official act. that's what presidents do. >> those are very severe examples. [ indiscernible ] he said under article two section -- that the president official acts are never examined about by th courts and he says that four ffent times. >> let me ask you about that then, counsel your poti is as i understand it if a president is impeached or convicd, impeached and nvted by congress then he isubject to criminal osecution, correct? >> isthat a yes? >> therefore he is not mpletely and absolutely

immune because of the ocedure you concede he can be prosecuted if theris an impeachment and conviction by thsenate. >> very formidable structural [ indiscernible ] against the radical action. >> but you are conceding that presidents can be crimal prosecuted under certain circums. >> specifically if impeached and convicted. >> isn't that also a concession that a president can be criminally prosecuted for an official act because prts can be impeached for official ts? >>under unique circumstances pick >> cor given that you are conceding that presidents can be criminally prosecuted under certain circumstances doesn't th narrow the issues before us to can a president be impeachedi'm sorry, kenny president beprosecuted without first being peached and convicted?

all of your other argument see to fall away. your separation of powers arguments fall away from your policy arguments fall away if you concede that a president can be criminallyprecuted >> the constitution and the k article two section 1 vein clause as interpreted clearly by chief justice marshall says article three lack jurisdiction to engage an examinatioofhe president official acts? >> but you nceded that article can do if he's impeached and convicd. >> the constitution makes a carefully balanced, explit exception to that principal in the impeachmenjument clause. the problem for the separation of powers, the constitution does this and other situations ere it engages in a balancing pick the framers weremo concerned about not the notion thprident would be prosecuted, what they were concerned about was politically

nod motivated prosecutions but they did not say the president can never be prosecuted. they set up the separation of powers and created a very narrow exception that would allow prosecution in those sepick >> but once you can see there is not this absolute immunity that the judiciarcahear criminal prosecutions under any circumstances, you are saying there's one specific circumstance then that means there isn't this absolute immunity that you claim. >> i'm not aware of any case or constitutional doctrine that would say the constitution sets up a strong principal and creates a narrow exception and therefore the exception makes the principal vanish. i disagree with that. >> that is not what i'm asking you. i'm saying that you arcoming before us and saying there this absolute immunity that is grounded in the separation of powers that the judiciary can never sit in judgme what the president is doin t you are conceding that's not true because under some circumstances the the ciary can do that. that -- from sitting in judgment

over a president official act. there's a narrow exception to for conviction after impeachment pick >> i understand but it seems to me once you concede that presidents can beprecuted under some circumstances your separation of powers argument falls away and the issues before us are narrowed to ar you correct in your interpretation of th impeachment judgment clause. does the imacent judgment clause actually say what you say it says? that's all there we need to dede. >> i respectfully disagree with that. there is a strong principal and it's reinforced by chief justice marshall. he did not say we can never sin in judgment over a president official act beushe can be impeached and convicted so we can do it whenever you want to pick he said they are neve

examined about by the courts. >> that swering the larger question about whether there is presidential immunity from criminal prosecution for ficial acts or are we looking to a standard on a moonto dismiss which says look to the allegations and take those as true and then look towhether or not we should be looking official acts in that lens. >> potentially both. essentially there is no such thing as criminal immunity for a former president and therefore the district court never reach the second issue which isthe face of the indime and are these official acts. we have ro arguments on both pick the notion of criminlyminutes for president does not exist is a shking rolling and would authorize the indictment of president biden in the western district of texas after he leaves office for mismanaging the border allegedlyndlet a texas jury and takes a judge said in validity -- >> -- dicated earlier when there were pardons or when people were not prosecuted not everybody goes through an impeachment proceeding before the actually get prosecuted

because that's within the description of the prosecutor. >> only for subordinate firs. as pointed out clearly the founders and framers in the constitutional convention clearly contemplated that sequence. that would be mandatory. he would have to be imacd and convicted first or -- >> but impeachment only deals with certain crimes bribery, treason, high crimes and misdemeanors. >> and what they said in the federalistnumber 65, high crimes and misdemeanors basically cover anhi the u.s. senate makes a political judgment d justifies roin in from office and other resin prosecution. >> -- does not make political judgments >> i think thathas no basis in the context t current prosecution with the current incuenof presidency is prosecuting has number one politicaopnent and his greatest electoral threat pick >> i'm asking you from the standpoint of what the pehment judgment clause is designed to do that it lit itself to certain facts and

then, therefore and if nvicted as you indicated, impeached and convicted, erfter could be prosecution but not everybody goes through that process and of course is limited to certain actors that regard but not everybody hato go through the process. prosecutors later on can come toinformation and evidence after they investigated to make the determinations about what they would like to criminally prosecute. they are not always confined to atwould be in the impeachment judgment clause pick >> whatever the practice is been , the evidence from the founding generation is clear you cannot do -- and this is one example of many th's reinforcing case law up the uniqueness of the presidency in the personnel office ice the office of the president. for example you get reat statements. and nixon against fitzgerald it's reaffirmed. the unique nature of that particular office. >> even under clinton withers a deal cut under president nixon

where there is a part in given? there is an assumption that you could be prosecuted because why enter into those particular ac? >> those examples are of purely private conduct. clinton against jones makes clear the stuff the president clinton cut and indictment deal about by admitting to certain wrongdoing in exchange for not being in that it was private coucnobody has contended the president -- private conduct pick the best is n be indicted for official acts. he referred to the pardon of president nixon. we have two thgs to say. president nixon was accused of a wide range of private conduct and facing potential indictment. >> -- back to purely private conduct. go to the indictment they are not alleging--they are alleging this is private condt subject to fraud, not official acts. wh you speak to that since you said we have to look at the broader quesonnd the indictment. >> yes, your honor. the allegations of the indictment allege will not be

characterized as private act as detein the alleged motive or purpose for that pick the theory and arterization of the language in the indictment as wearalleging purely private conduct as it was engaged in for particular purposes anthat's foreclosed by a very long and strong ne of supreme court presidents? >> -- here that this cius distinguish office seeker versus officeholder in terms committing the acts? >> this strongly reinforces what has been saidinsupreme court cases going ck to marbury versus madison where it's the nature ofthact itself. i understand the opinion to reinforce that by saying it's an objective. thusthe word objective multiple times. objective contt ecific assessment and does not turn on the purpose tive that was pushed and this court properly rejected. th's consistent with nixon against fitzgerald and bradley against official. it's thstrongest principal --

>> -- my colleagues because i'm king up your time but we will give you what you ed with respect to the actual inctment, it does not gloss over and put it in terms as you are describing. if we look at the base of the inctnt as to what is charged when it's gone through a and jury process, unlike the impeachment dgment clause , how do we look at those partul acts as described? we have to take those at face value. >> there's your guidance on isfrom nixon against fitzgerald the allegation was president nixon unlawfully terminated a whistleblower and that was a blur came to court and said this is not subject to immunity because it was unlawful in the court that were not looking at that granular vel of detail and not considering most importantly thalleged motive for these acts. it said thvel of

specificity to consider is conducting the business of the air force. if you look atthe indictment there are five classes of coucalleged and many are obviously official conduct pick meeting with the u.s. department of justice about who should be the cabinet level officer running th. >> you said many of which. >> all of which. there's only one exception beusthere's allegations against -- ifyou look at the others, president trump's tweets , the second circuit held that it was based as an official channel,hiher account during the presidency was an official channel of government communication anall those tweets are obviously immu also with meetings with the department of justice and meetings with members of ngress falls into the heartland of article two sectio3 ich authorizes the president indicate with congress aboumaers he views as expedient. >> let me ask you. i don't believe you were counlethen but what about the two coesons made in the

first impeachment proceeding and then in trouble the dance that impeacenshould wait until he's out of office when he would be subject to criminal liability? >> as to trump against vance s purely private conduct involved a suoe for tax records that long predated president trump's time office so it was purely ive conduct and concession he could be subject to prosecution is correct. as for the impeachment brief that they cited in their briefs , that sayshave the judicial process in this country. period. we have an investigator process in this country to which no formal officer is immune. it's at you can never be raised in immunity defense. >> i'm sorry. there's a quote in the congressional record in ich your client said through counsel no former office holder is immune from investigation or prosecution true of subordinate officers

t of the principal officer, the pridt is immune unless impeached d convicted and a comes back -- >> he s esent at the time and his position was atno former office holder is immune and, in fact, the argument was there is no need to vote for pehment because we have this backstop which is criminal prosecution and it seems that many senators relied on that voting to acquit. >> -- the court, i in, lost the ability to intuit what motivated center boats d impeachment process. the constitution says -- >> -- question that judge henderson is asking you is your client okthe position during the impeachment proceedings thatthe would be an option for criminal osution later and it's in the congressna record and i guess the question iswh has changed or what did you change your position?

>> >> beeve there was a distinction between the investigative process in the quote i just read. inaddition to that whatever concession may or may not ha been made there whatnot have an effect in these proceedings. these are different proceeng again, the notionthat no one is immune fr e judicial process, the judicial process go for what is consistent with the procs -- rooted in the separation of powers. the motion there could be a criminal process and then defense could be raising that process is straightforward. there is no concession that e is no such thing as no concession in those proceedings that what the district court and this did and the astonishing holdg at no president is criminally immune from prosecution is, i think it's not there ine congressional record. >> let me go back to marbury versus madison and you oled

that one sentence. isn't it true that the progeny of marbury versus madison as distinguish between discretionaryofficial acts and ministerialby which they mean imposed by law and it's the latter one in which he can be held liable? ani want you to address both u.s. thjohnson and the commonwealth ofvirginia because the first one deals with the speech and debate clause and the supreme court said in essence, lop off all of the evidence dealing with speech and debate. he can still be prosecuted, that is at congressman, for, i think it was nsracy to defraud the u.s. or somethg. and then in the commonwealth of virginia, you had the judge who

had been charged with a crime under icyou cannot discriminate in cking juries based on -- my reading of that case is the language that you isolate in your reply brief thatitcould just as easily be done -- that is the choosing of the jury -- be a ministerial act by someone the street. to me, that means when you have a duty that is imposed by law, piina jury, they said, was ministerial imposed by law. whether you are the man on the street or the president, whhein that case you are the judge, who can be held criminally liable. and that is how i read, if not marbury, the progeny. that is yocan't stop an official act.

you have to say was a discretionary official act or was it a ministerial? >> i agree with that characterization. i think that distinction and what i would respond it tosay the extension has never been extended up to the president and for good reon. for over 200 years the courts have saidwecan't sit in judgment over official acts under any circumstances. >> -- >> has never arisen until this case but that is correct. if you look every civil contt keep in mind which chiejuice marshall says is never examined the bowl. never examine the bolt so there would be no judialproceeding we could say the president did this and we will sit in judgment dict over that. that is reinforced by mississippi versus johnson and swan versus clinton whether courts hold we can't even enjoin or enter a declaratory judgment directly agnsthe president for his official act

were as the stction between ministerial and discretionary has been held totally with reect to subordinate officers and that goes all the way ck to marbury. but if you look at the indictment in this case nothing alights ait president trump could be described as ministeriaannot a where the government every argue that if you talking about responding to widespread allegations of fraud and abuse and misfeasance and a president election. trying to find how to reon to that in the naon interest. matters of that nature not ministerial at all. even if the distinction goes all the way up -- it would not save the indictment here. >> my is in it ministerial that his constitutional duty to take care that laws be faithfully executed reir him to follow those laws? of them? >> ye, mean, i would say that the ta care clause, caring out once duties ar inherent in discretionary. a ministerial act, -- there is a separate statute, with

emphasize is a separate statute, he was in one hand andirect agent of the esent -- on the other hand the original statute purely ministerial duties the had to do with record-keeping and delivering document if you had a land deed with the al and a person asked for it whe ere is no discretion at all. wh u're talking about the take care clause there is no statute that could impose on the president a mandatory -- the notion that when the president is meeting with the dertnt of justice saying we should investigate and enforce federal fraud statutes, the notion that that is ministerial strikes me as -- >> i thk you're missing what i'm asking which is, i think it is paradoxical to say is constitutional duty ke care of the clause be

fahfly executed, allows him to violate crin laws now, we are at the motion to dismiss stage, the government s charges specific criminal laws, we have to assume they are ue. >> my response to that i think would be to phize what chief justice marshall said in marbury which is they can never beexined by courts -- >> but i thghyou agreed with me that we have gotten beyond marbury inthe sense that offici ts has be subdivided into discretionary and tyound or ministerial. and in the ministerial or duty- bound at least with respect to evenleslators and judges, they have been criminally --

held criminallylile. that is in the face, at least with respect to legislators, of explicit cotitional privilege. >> i don't view the u.s. against johnson even versus discretionary distinction, think what johnson says it doesn't say when you are doing these other things they were ministerial, these are not legislative acts. right? it draws attention between legislative d n-legislative acts. also i think that is the right reading ofthexpert a virginia. it goes on toy judicial act, digging a jury, i n'even believe the use the world -- word ministerial. >> picking thjury based on [ indiscernible ] whatever johnson did thk it was the very same statutbrght against the united states that isbere us today. >> the distinction in those cases is between the judicial case johnson,sorry, legislative, i'm sorry

legislative case johnson between legislacts and non-legislative acts. the distinction in expe virginia is between judicial acts and nonjudicial acts in here the distinction is between presidential acts and nonpresidential acts. and everything mentioned in the indictment is a presidential act. >> may i? there are a number of cases in which the supreme urhas reviewed actions by the president. the supreme court reviewed harry truman's seizure of the steel mills during e korean war. there is also the case of where little versus bream were chief justice marshall review the tion of president adams when he sees certain vessel trump versus hawaii was reviewing presidt ump's order restricting entrceinto united states from nationals fr rtain foreign countries. how does that square with yo position that judiciary can never review executive action? the well-established exception

in expert a young er judiciary is allowed and does gurly issue declaratory judgments and junctions against suboine officers. >> these are presidents. harry tranwas the president. how does that support with your theory? >> that case was an junction against the secretary of congre d not the president. this court reaffirmed recently you can have an injunction against the president. the board has no jurisdiction to do that. it strongly indicates that the court -- >> the court can review presidential action if on paper they direeir judgment to a supporting officer. is that what you're saying? e he's a presidential actions. >> the court cathe violate the constitution as expe a young. >> i'asng you a different eson.

these are ential decisions. presidential actions and you're saying the court can review presidential actions as long when the issue the judgment they can -- >> the can't directly sit in judgment it's beenestablished for over two years. >> you are using the imachment judgment clause essentially is a negative imicion with respect to the civilian officer or president of course has to be impeached and convicted and then nevertheless thereafter. if there is an acquittal, how aryou using it in that regard beussometimes, particularly in this case, the acquittal can arise from lack of jurisdiction, not actual trying the merits of the case. >> the merits related acquittals frankly thsame sort of thing comes up incriminal prosecutions under the double jeopdyclause where a dermation that the defendant is acquitted does not necessarily reflect an actual determination that ey are not

factually guilty. is is emphasized in the memo they they themseesaddressed that determination often reflects things that are distinct from the merits. that doesn't undermine the double jeopardy forcofthe impeachment judgment clause. >>one indicated check h is improperly appointed. to have a position? >> it's a persuasive brief but we haven't raised in this case at this time. >> just about the effectif we say we can't determine if the acts are official or private, i want to stay away from that, i'm going to say ministerial or discretionary, and characterized it in terms of office versus offihoer, what is your position about, would we ha to remanded with

a district judge decide in thfit instance whether ese various, the four points the defense has made against opposing imal liability nge on whether the acts are ministerial, discretionary, official, private, however you wa to characterize it. >>against jones says purely pratconduct is what can be subject to judicial process afr esident leaves office. our principal position is you can look at this indictment and leges official act that can be dismissed. we acknowledge that the district court didn't reach that issue but did remand an the court has discretion to remandfothe application of the doctrine of criminal immunity in the first instance. we admit thatwod be a natural thing for the cot to

do. in other words if the court holds that there is presenal immunity, which it should, the district court to go through the indictment factual findings and so forth to decide how it applies. we acknowledge that would be the court has discretion to that. and that there are no further questions. >> i have one more question. der the framework established or discussed in nixon versus fitzra, we are supposed to conduct a balancing test where webalance the need for the asserted immuni rsus other public interests. represent you need for the ive to have is immunity to facilitexecutive functions. the abil to act without hetaon, to be fearless. to make decision-making, to make decisions withoubeg inhibited by the fear of prosecution. but it seems to me that there are some other article to test here that are

countervailing. for example, under ticle 2 there is an executive vesting clause. ere is an interest of the executive branch is an institution to have constial executive power vest in a newly elected president. there is so an executive interest as an institution in law enforcementand enforcing criminal laws. so it seems to me if we are weighing executive interest veus public interest, public interest in things like integrity of an election, that president trump's position is not fully igd with the institutional interests of the executive branch. and in is balancing test that weakens the executive power he is trying to assert. >> three things in respse

nixofigerald emphasizes the most compelling consideration wi policy considerations are in the separation ofpowers is the rendering of the executiv branch official unduly cautious , unduly cautious in the exerci highly controversial decisions the come up all the time. if the president has to look over his shoulder or her shouldery time he or she has to make a controversial decision, if after i leave office am i going to jail, at inevitably dampens the ability of the presen >> i understand that is your position but i guess i'm asking yo what about other article 2 interests? that is one but there are others in play too and they seem to be counteaing. the interest in executive vesting. the interest in law enforcement. those are also executive branch interests. how shldthat affect the analysis? >> balancing runciblepotion to go back to reverses medicine andfitzgerald, to th extent

thcourt reaches balancing they are twghed by a republic shattering consequences of subjecting her chief executives in an endless cycle to prosecion once they leave office. the founders were much against that. they were deeply cod with that. you see that in hamilton's writings, in 69, 77, madison's concern about artificial trees in. federast47, that is the original meaning of the constitution. >>it just occurred tome, do you think we should take any cognizance of the fact th when they wrote that george shgton was the president? very, very strong executive, ngss is brand-new. everthg else is brand-new. things have banc out.

we have a strong congress. have is trying to sherry and a strong president. >> i think if you okat the writings of the founders they were definitely looking past the presidency orge washington, obviously an iconic figure, future presidencies, and they correctly anticipated the nation might -- they were deeply concerned about developing factions. factions that did not gorn the presidency of george washingtonbeuse of his moral authority. mutely when u t to adams and jeffern th correctly anticipated deliberately looking stthat presidency to the future of e republic. 234 years it stood untiwas shattered by the indictment of president trump. if the court s no further questions you would ask rules against us in any respect we requthe court states mandate to allow us to see for the review. >> can you give us five

minutes? >> thank you your honor. good morning, may it please the court, never in our nations history we have held this case is a president claimed immunity and coloosecution extends beyond his time in . the president has a unique constitutional role, but he is not abovlaw. separation of powerscouples, constitutional text, history, precedent and other immunity doctrines all point to the conclusion that a president enjoys no immunity from criminal prosecution. at mum, this case in which the defendant isalleged election is not the place to recognize some novel form of criminal unity. now, i want to start with jurisdiction asjudge tiles raised, it is our view that the

court has and should entertai both claims before it. with respect to the immunity claim, i think this court's decision 10 years after midland did allude to a type of separaof powers claim that would involve presidential immunity, i think judge henderson pointed at the supreme court itself has acknowledged that this idea of plicit guarantee is more of a suggestion than sort of statutory prescrip >> there has been okay since then i have used the to follow up on that line of thinking. >> within the supreme court, i don't believe ther been cases but certainly this court in cases post-midland asphalt, like rose, and during have been recognized that type of separation of powers claim when you are talking about immuis something for which a collateral order theory is available. >> there are alsoother

circuits. first, second intent the following that line of thinking with t to woodlands asphalt, it requires explicit constitutional or statutory language that says you cannot be tried. >> two responses, i think in cases this court has spoken otherwise, but nonetheless i thinonly one there is the first t's decision in joseph word was the case of a judge seeking, raising immunity defensto criminal prosecution as this acknowledged in both rostenkowski during burger, didn't owledge that. claiborne and hastings which are ninth circuit and elected t cases. just when it with a personal beauty like that it's different than the type of trional duties considered in the second circuit cases. we do, sort of a small point of

common ground between us and defendant, with respect to jurisdiction, there is a lile bit of a different inquiry with respect to a president. we don't think that rries over to the merits in the but i think the u.s. versus nixon is a perfect example of that. the court said it would be unseemly ld the president to require the president to into contempt, nonetheless reaching the merejected president nixon's absolute executive ivilege claim and required -- >> you don't see a distinction e civil versus criminal context? >> i don't. and rose said as much here when talking about civil and criminal with respecspeech or debate. again, know nixon versus fitzgerald is a civil case and we strodisagree that it should be applied here for many of the reasons that judge pan set out. i think with respects to the immunity, given the language in rose that would supply basi

amenity claim. o entertain the >> but why aren't you ta the position that we should s this appeal because it's interlaboratory, doesn't it advance yourrests? >> our interests are two full. u.s. versus nixon, it's doing justice. and the second is move promptly to satisfy and vindicate the publand defendant's interest in a prompt resolution of this trial. doing justice means getting the lot rid it is our view that even a dismissal on jurisdiction might move this faster, actually we just don't think that is the ght analysis here on either immunity the second clai >> we have a line of including kramer versus gates, american hospitsociation versus a czar, it says we can assume hypothetical statutory jurisdiction and reach the merits of the case. statutory jurisdiction being jurisdiction which we could

never assume which indicates the power of the court to act. if we had discretion to h the merits versus just dismissiis case under midland asphalt which i think is a strong president suggests this appeal is interrogatory and does t fall collateral doctrine how should we determine to exercise the jurisdiction about whether orwe should reach the merits? >> in the americanspitals decision, 2020, the court said something like we are doubtful as to her jurisdiction but nonetheless invoking the line of cases you just described went on to decide the merits we would urge the courts do the same. even if it entertains doubts with respects to the jurisdiction. hypothetical statutory law of the circuit and the nder court shreach that. >> does not lead to a

hypothetical decision and advisory op >> no. >> the sucourt has said that. don't think this report has said . bleeding court decision, some courts including this court s devised a hypothetical statutory jurisdiction rine. now, if this court were to dismiss, for lack of jurisdiction, and then say nonethel an alternative holding here is how we would come outhe merits, that i think would be improper and that is what i understand the american oversight brief to be suggesting footnote 11 on page 20 of the brief. that i don't think is something the court could do. i unnd hypothetical statutory jurisdiction piece to allow the court to say, this is hard, there might be arguments of both sides, we think th there is, we assume hypotheticatutory jurisdiction and we move forward and decide the rits. >> let me ask about arbery versus madison. what is your interpre of

the case itself? >> so, our interpre is much closer in line with what think i heard judge pan setting out and similar to yours, it rtainly does not erect and unreviewable power for presidency. i think the prime example of that is the town case, that was president truman closing the steel mills, at was the court coming in and reviewing that. we see that all the way through to the present and so it is hard toany world in which the court just says,we can't ine. i accept the court, judge hen, the distinction between sort of erial and discretionary acts, compliance with the law is not some sort of discretionar. right? it is something, i fully endorse or agree with the idea, the paradox for the president on the one hand having article

two take responsibility and on the other haseeing the law as compliance with the is optional. how do we ite an opinion that would the floodgates your predecessors in their olc liability would be unavoidably political. >> so,a couple of responses. one of course, that was with respect to a sitting president. i think the analysis extraordinarily different with respects to a former president which olc in that very same-- >> but not with respect to being >> well, i think there is a cal process which is impeachment and we can talk about that, but there is a gal process which is decidedly not lega that is a process which has the

kinds of safeguards the couple of the members the court have referred to. are talking about prosecutors who follow st codes and are presumed of act with regularity. grand jurors, and this court standing, the article 3 court standing above it. i also want to push back a little bit about this idea floodgate. at least since the watergate been widespread societal ere recognition, including by presidents and exe branch that the former president is ect to criminal prosecution. n was not about private conduct. nixon was about, among othe things, using the cia to try to interfere with an fbi he accepts a pardon understanding th after having resigned, i think that undermines this impeachment t argument, after nixon, we then see a series of independenspecial prosecutors investigating a range of different typeof conduct.

you saw independent counsel in the iran-contra affair. the defendankes in reply brief, in chapter 27 of that report, the independent co assumes that president reagan subject to prosecution and says, but we didn't get there evidentiary. there was not enough we thought there some sort of immunity. that has cod through to the present. this notion th are all of a sudden going to see if floodgate, agthe careful investigations in the clinton era didnsult in any the fact that this vestigation did, doesn't reflect the we're going to see a change of vindictive prosecutions in the future. it reflects the fundamentally unprecd nature of the criminal charges here. never before has there been legations that a sitting president has, with private

individuals, and using the levers of power, sought to fundamentally subvert the democratic republic and electoral system. and frankly, if that pattern arises again, i think it would weren't some mechanism by which to reach that criminally. >> in your brief you raised sort of lesser immunity, potentially applying. want to speak to that? but i do. we don't think that is coming into play here. i think the point in some sort of more challenging cases, it might be that where a president is operatingunder has to make a very difficult national secutype of decision, do i go when -- do order the drone strike under circumstances, a president will often have a dre of lawyers to advise him or her. the lawyers say, madam president, we will get you a memo in two months. that's not going to be enough

in that situation. if there wedrone strike, civilians were kithat theoretically could be subject to sort of prosecution as murder. i think that maybe the kind place in which the properly recognize some kind of nity. but that is of course nothing like we have here. i sort of take thformer officials brief sing the vesting clause to talk about the nature of charges whenthey electoral process. bverting the at a minimum there should be type of immunity the covers >> are you saying it should be a case-by-case balancingin each case whether there is immunity? how does this work as legal standard? >> we think it should just be is a district court held, -- there isbalancing under fitzgerald. that is our you start with this question, what e burdens against the presidency and what are the interests further? i think the swer to that

question undegerald, i think the burdens that my friend talks abouthe other side are overstated. think the interest, the criminal prosecution there oing should be an across-the-board le that if former president is subject to criminal prosecution, what i'm describing in response to judg child's question is, in a part case, might there be some extra night circumstance president could invoke an r immunity? ybe. i don't think the court has to reach that there. i think the court could write an opinion that reserves and says based on the nature of the allegations which we take is true there is no reason to recognize that here. and so i don't think it needs to be a case-by-casanalysis. i think the court can reserve that type of question to the it gives one pause about situation. in a future >> can you answer the question i posed earlier to opposing counsel about, are we look

at the broadetion that was dealt with respect to presidential immunity, absolute of official acts versus looking at this indictment accepting as true the allegations it brought. or? >> we have a strong preference but the court adopts the former and looks at the question in the way of, as a district court did. which is to say, based on questions of separation of powers, constitutitext, history, precedent, is there in fact immufor a former president? we think the er to that is no for of coall the reasons we put in the brief and i'm happy to address here. candidly, i think the court gets that second question ther are some hard questions about the of official acts. and frankly, as judge pa hypothetical describe, what

kind of world arwe living in if as i rstood my friend on the other side to say, a president orders his team to assassinate a litical rival and resigns, for ample, before an impeachment, not a criminal act. president is pardoned and hed not a crime. i think that is extraordinar frightening future and that is the kind, if we're talking about a balancing and weighing the interests, i think that shouldextra nearly heavy on the court's consideratio >> what about the effect of -- how does it either bind , how is it persuasive for us? >> so, i thit formally has an application at all because very early on in the opinion court says, we are not dealing with estions of context. in the criminal i tend to agree with my friend

respects it does reinforce the nature of the rald civil outer perimeter standard. it saysdon't look at intent or you don't ok at a purpose, contays a more content of give indications. the significant change of course is the acknowledgment is that president is acting in his or he as office seeker or holder. but, again, to go back to my response to judge child's's question, whether that may change the nature whether certain things are or not official acts in the indictment we think that is entirely the wrong parato use. in fact that would be inconsistent with fitzgerald's reasoning. also just irreconcilable with the naturehow criminal law works. to say we are not going to take account of motiveor intent , therplenty of acts the do that everyday. for example if ito encourage

someone not to tein trial because i wanted to go a hike with themit's not a crime. ifre to encourage them not to go on hike because their ony -- rry encourage them to skip the trial testimony because their testimony was going to incriminate me, it's thsame underlying act. whenmap that onto the presidential contexu come up with some of the frightening hypotheticals where as long as something is plausibly official, assassinating a prominent critic seem to then be exempt, would polly, from criminal prosecution. we certainly wouldn't concede that if that is the world we need to live in. i think we would advance ty of arguments below. but those arguments themselves would create satellite litigation that are an additional reason not to go down this road. >> looking and thinking about ur answer about potentially

not looking at motivated intent, when thera criminal prosecution, intent is part of the actual stcharged criminally. >> precisely. that is why would make sense to then come in and use this non-motive intent. i understand fitzgerald outer perimeter standard might wo could say those types of official acts, official conduct, that is something for which the presidenimmune. you don't ever get to the second question of well, did the act then with cami ivett and reasonable doubt because at least under a theo where it's not available trial there is no way to reach that conduct. >> when we're looking this indictment, back to judge nderson's question about the use of some of the acts are samesimilar and there was discussion in that opin is determining whether it was office seeker us officeholder.

do use gland gain for that? case the way the district court does, did, pardon me, that i don'k that has any role to play at albecause there is no question of whethethis act is official or these sets eight fitzgerald analysis d on history precedent et ra, is there any quantum immunity for former president we think the answer is no. there is no reason as a district account this court found this outer perimeter standard. >>about we don't decide with the district court did? >> if we don't, -- >> -- >> there a lot of different ways this could decide that way, to pick up onmy response to judge child's's stand behind our brief

there is some substantial number ofgations of all outside of an outer perimeter and that i think is enough to affirm. i think either parties are encouraging it to send it ba to the district court. i thin then would create a series of challengin questions i mentioned earlier, what are the evidenti theories under which that evidence could potey come in? it would be our stroview and we would want the court to follow that rowhich we urge the court not to, tomake it clear that immunity is an on/off switch. this is the immunity appeal. if the court says we affirm, we immunity, and other things become evidentiary questions or questions really of jury instructions which any is then an appeal from the final judgment if any final judgment. divinity defenses never lost. >> well, i don't think it is immunity at that point. i think this court have said there is immunity,

there may be some types of other challenges as evidence comes into but again, i think that would lead to this extraordinarily complicated tigation that is not top line reason but certainly among the reasons why the court should not godown that path. >> since president trump concedes that a president can be criminally prosecuted under some circumstances, hesays that is true only if heis first impeached and convicted by congress, you agree this appeal largely boils down to whether he is correct in his interpretation e impeachment judgment clause? that is, if he is correct, that the impeachment judgment clause includes this impeachment first rule then he wins? and if he is wrong, if we th the impeachment judgment clause does not coan impeachment first rule than he loses?

>> i think this basically right. the defendant's over the course of the litigation has evolved a bit and i think now re this court i understand the argument's to be you just described. to be as what we call in our brief the condition resident argument. that there is only liability, criminal liability for former pres that president has been impeached and conv that is wrong for textual structural, historicalons and a host of practical once. onwhich i will start with agai to amplify the point. it would mean if a former president engages in assassination, g pardons, these kinds of things, and then there is no accountability for for individual. that is frightening. not to goback to some of the textual and historicd structural, my friend of the otde suggests this is

what the founders were g about in this is what they were worried about. i think that is entirely inaccurate presentation of the founding era history. there sically discussion of the impeachment judgment se which i take the defendant's principal te argument, what the impeachment judgment clthat was two things is a district court describes, it constrained the nctions congress could place on an impeached and convicted officer. not only a president, any kind of officer, to removal or disqualification. and then it made clear that impeachment did not impose some sort of preclusive on subs criminal prosecution. would think if there is is kind of impeachment first requirement, impeachmend conviction first you might actualfind something the framing, the ratification discussions, early history, there was nothing of that. we have cited certaithings in our brief from wilson, hamilton, representative that

say this. just the story. i don't hear it offering anything other than hamilt all hamilton was describing was the undisppoint that a subject to criminal prosecution until that sitting president no longer in office, whether the removal from ce is impeachment and conviction or now, a structural point aswell i want to quickly make, the district court made this, if this were right, if the presiden were correct it would pose a significant separation of powers on its own. would basically mean the executive branch would only be able to prosecute someone if congress had acted. there all sorts of reasonwhy congress won't actfor one, they have never believed it was required and also in certn instances they may decide the don'have jurisdiction. many

of the members of congress seem to that view with respect to the defendants second impeachment. like you very much. >> thank you, your honor. i want to make three points the opposing counsel's argument. onisthat the opposing counsel use the phrase above the law think that unity doctrinewod place the president above the law. i wish to direct the courts attention at this pre- court said in fitzgeld in the context of civil unity. they describe thalgation that immunity sets the official above the law as "rhetorically chilling but wholly unjustified. the u.s. constitution separation ofwers, impeachment judgment clause, the e the foundational environmental law of our uny. the presidents unity is determined onth.

that is more rhetoric than realitiswhat the supreme cot id in nixon versus tzrald. i'd also point out that when it comes to whether or not the indictment liously official acts, the indictment does not algepresident trump did anything wrong after he left office. it focuses solely on acts he took while in office. and that is a llg indication we are dealing with ofcial acts. and finally, i would address jue nderson's question about the floodgates. i tie that towhat my opposing counsel id about eight so cold frightening future. the frightening future he alges for presidentsseldom or ever prosecuted because i have to be impeached convicted firsisthe one we have lived under. that is not a frightening tu. that is our republic. when he is foresting is a situation where the floodgates situation where we have the prosecution of the political opponent who is winning in every poll, upcoming next year is being prosecuted

by the industry should seeking to replace. that is a frhting future. that is tailor made that will shake our republic for the futu. >> to have the impeachment judgment clause as you inca, impeachment and conviction, but then the pridt either resigns, is moved and then later onis prosecuted for a different crime. can that happen? or is there muty there? >> i'm not sure i understand the hypothetical. >> i'm indicating if you're resting on there mu be impeachment and conviction, and is for one set of crimes, but later on the president eith is removed from office resigns, and later on there is a prosecution for something different, is there immunity for that later crime? >> yes, i think that is the better reason isolates not in this case because we have thclothes back -- match between the conduct and occurrence alleged in the articles of impeachment. of which there was an acquittal. which is the strongest case for double deputy

>> you just made a statement about he's only beingprosecuted for crimes ilin office. and so that iswhy i'm asking about leing office and then thereafter being prosecuted for something different. >> the best adg would be he has to be impeheand convicted for the thing he subsequently prosecuted. impeached, convicted and removed and they charge him with another official act unrelated to e impeachment i think what chief marshall says in mawould still govern. that would my answer. >> i just want to nfm, your position is, if president trump had been convicted after his pehment trial on insurrection, if d been convicted, then this prosecution would be entirely. >> if you're impeheand convicted for the same and

similar conduct that would authorize subseqnt prosecution. >> at a guess? because i think you said in your brief that that impeachment for incitement of suection is based on the same or rete conduct. that which is in the indictment. >> yes, i age with that. >> so, if he had been convicted by the senate, then is prosecution would be entirely proper. direct? >>i would phrase it that wa because there other problems raised. >> under the impeachment judgme ause, if he had been coicd i the senate when he was impeached for incitement of insurrection, on same or related conduct is within the indictment, then this prosecution would be properly brought. >> a prosecution could properly brought. th prosecution is tons of

r problems. i want to be very clear. i'm not making any concession. >> let try one more time. under your interpretation the impeachment judgment clause, if president trump had been convicted when he was previously impeached on same or related conduct, as that which is in this indictment, the governmeuld properly prosecute him for that same or related conduct? yes or no? >> potentially provided they qualified with other legal documents violated in this case >> i'm only asking you to your interpretation of the impeachment judgment clause, is that proper? is that allowed? >> std on my prayer answer. >> i understand there may be other reasons why you would challenge this prosecution. i am saying basin your to petition of the au this prosecution would be properly brght. >> again, i would not say this prosecution, i'll be very clear about that >> a prosecution based on same or related conduct? >> this prosecution as

other related issues, whether it's a is the impeachment judgment clause authorizes the judgment prosecution of a pridt impeached and convicted -- hypothetical, say president was impeached and convicteona charge of inci of insurrection that is under the same allegations as a criminal ctment, he is convicted. then the government could brin a prosecution for the same or reteconduct, correct? >> i don't disagree. >> and then that means that the conduct, me or related, even if it is official, he could be prosecuted for it, correct? >> -- >>correct. thank you. >> my question goes after- the-fact, even though you're challeinthat these actions are only occurring while prident, the district court decision was that there is no residential immunity from prosecution for official acts. it doesn't put a timeframe in

there. that is whi am going to beyond your investigio your prosecution might not come until lar. after the president has left office. so you telling us we are limited to a meame in answering this question? i think the timeframe is set forth in marbury versus madison, when he said never examined by the courts. that one beekeeping incident that has to occur, conviction, the official asked the court has no jurisdiction to review them under the separation of powers. >> that also assumes an impeachment proceeding occurred. if there is not one because we discussed earlier that not all officials go through that process. >> absolutely. >>th is a judgment call as to whhethat process would be brought. o arguments that reinforce each other. ifthe is no impeachment ever and no conviction, then the official acts are immune. period further, the impeachment judgment clause incorporates a doctrine of double jeopardy

that prohibits it especial the case of acquittal. those arreinforcing doctrines for the constitution. if are no further questions we asked the coto reverse. >> thank you. >> today at 3:00, a judgpanel from the d.c. circuit court of appeals heard arguments. it foses on whether former president trump is immune fr prosecution for his alleged role in the january 6 attack in the capital. if you missed any of this oral argument will ehret tonight and then:00 eastern on c-span. you can watch anytime on the app or online at c-span.org.

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