>> M SOUR?
>> MR. CHIEF JUSTICEND MAY IT
PLEASE THE COURT, WITHOUT
RESIDENTIAL IMMUNITY FROM
CRIMINAL PROSECUTION, ERE CAN
BE NO PRESIDENCY AS WE KNOW IT.
FOR 200 34 YEARS OF AMERICAN
HISTY, NO PRESIDENT WAS EVER
PROSECUTED FOR HIS OFFICIAL ACT.
THE FRAMERS OF OURONSTITUTION
FEUDED ENERGETIC EXECUTIVE AS
ESSENTIAL SECURING LIBERTY.
IF A PRESIDENT CAN BE CHARGED,
PUT ON TRIAL AND IN PRISON FOR
HIS MOST CONTROVERSIAL DECIO
AS SOON AS HE LEAVES OFFICE,
THAT LOOMING THREAT WILL DISTORT
THE PRESIDENT'S DECIOMAKING
PRECISELY WHENOLAND FEARLESS
ACTION IS MOST NEEDED.
EVERY CURRENT PRESIDENT WILL
FACE THE FACT OF BLACKMAIL AND
TOION BY HIS POLITICAL RIVALS WHILE HE IS STILL IN
OFFICE
THE IMICIONS OF THE COURT'S DECISION HERE EXTEND FAR BEYD
THE FACTS OF THIS CASE.
COULD PRESIDENT GEORGE W.USH
HAVE BEEN SENT TO PRISON FOR
OBSTRUCTING AN OFFICIAL
OCDING OR ALLEGEDLY LYING TO
CONGRESS TO INDUCE WAR IN IRAQ?
COULD PRESIDENT OBAMA BE CHARGED
WITH MURDER FOR KILLING U.S.
CITIZENS ABROAD BY DRONE STRIKE?
COULD PRIDT BIDEN SOMEDAY BE
CHARGED WIT UNLAWFULLY INDUCING
MIANTS TO ENTER THE COUNTRY
LEGALLY FOR HIS BORDER POLICY.
E ANSWER TO ALL THESE
QUESTIS NO.
PROSECUTING THE PRESIDT R
OFFICIAL ACTS IS AN INNOVATION
WITH NO FOOTHOLD IN HISTORY OR
TRADITION AND INCOMPATIBLE WITH
OUR CONSTITUON STRUCTURE.
THE ORIGALEANING OF THE
EXECUTIVE VESTING CLAE,HE
FRAMERS UNDERSTANDING AND
UNBROKEN HISTORIL ADITION
SPANNING 200 YRS AND POLICY
COIDATIONS ROOTED IN THE
SEPARATION OF POWERS ALL COUNSEL
AGAINST IT.
I WELCOME THE COURTS QUESTIONS.
>> MR.SAUER, TO YOUR LAST POINT
KOBA COULD YOU BE MORE PRECISE?
>> IT'S OTED IN THE VTING
CLAUSE. >> HOW DOES THAT HAPPEN?
>> THE SOURCE OF IT IS THAT THE
EXUTE VESTING CLAUSE DOES
NOT INCLUDE ONLY EXECUTIVE
POWERS LAID OUT THERE AND T
ENCOMPASS E POWERS ORIGINALLY UNDERSTOOD TO BE
INCLUDED THEREIN AND MARBURY
AGAINST DIN ITSELF PROVIDES
EVIDENCE THIS MEANT COMMUNITY
THAT ARE PRICED THIS THAT
AFFECTS THE PRESIDENT'OFFICIAL
ACTS FROM SCRUTINY SITTING IN
JUDGMENT OF THE ARTICLES.
THAT MATCHES THE ORIGINAL
UNDETAING OF THE EXECUTIVE
ORDER. >> HOW EXACTLY WOULD WE
DETERMINE WHAT AN OFFICIAL ACT
IS? >> I POINT THE CARD TO TWO CASES
FOR THAT.
FITZGERALD AGAINST NIXON IS THE
BEST GUIDANCE THE COURT GIVES,
THE OUTER PERIMETER TEST AND THE
COURT AND GAZING OUT ANALYSIS
THAT LOOK AT THE LEVEL OF
SPECIFICITY AT WHICH THE ACTS
ARE DESCRIBED AND THAT CASE
WHICH WAS A CIVIL CASE.
>> LET'S SAY THE OFFICIAL ACT IS
APPOINTING AMBASSADORS IN THE
PRESIDENT APPOINTS A PARTICULAR
INDIVIDUAL TO THE COUNTRY BUT
IT'S IN EXCHANGE FOR A BRIBE AND
SOMEBODY SAYS I WILL GIVE YOU $1
MILLION IF I AM MADE AMBASSADOR.
HOW Y ANALYZE THAT?
>>HAWOULD FOLLOW THIS
DISCUSSIONS I BREWSTER THAT
BRERY IS NOT AN OFFICIAL ACT
WHICH MATCHES A COMMON-LAW BACKGROUND.
THE WAY THE COURT DISTINGUISHED
IS THESERE NOT OFFICIAL ACTS.
IT WOULD BE ESSENTIALLY
UNRESTRICTED WILL BEFORE THE
CONGRE. >> ACCEPTING THE BRIBE IS NOT AN
OFFICIAL ACT BUT APPOINTING AN
AMBASSADOR CERTAINLY WITHIN THE
OFFICIAL RESPONSIBILITY OF THE
PRESIDENT.
HOW DOES YOUR OFFICIAL ACTS OR
THE OFFICIAL ACT ORDER OR
BOUNDARY COME INTO PLAY AND IT'S
GOING TO BE OFFICIAL ASSUMING
E ESIDENT IS INNOCENT.
THQUTION IS WHETHER HE WILL
BE FOUND INNOCENT OR GLT
>> AGAIN, I THINK BRUCE VERSUS
JOHNSON IN A SLIGHTLY DIFFERENT
CONTEXT.
THE INDICTMENT HAS TO BE
EXPUNGED, ALL THE IMMUNE
OFFICIAL ACTS DETERMINE WHAT'S
OFFICIAL AND WHAT'S NOT OFFICIAL.
>>OU SAY WE ARE PROSECUTING
BECAUSE YOU ACCEPTED $1 MILLION
AS -- ARE YOU SUPPOSED TO NOT
SAY WHAT IT'S FOR BECAUSE WITHIN
THE PRESIDE'S OFFICIAL DUTIES?
>> THERE WOULD HAVE TO BE AN
INDIVIDUAL SOURCE OF EVIDENCE
R THAT. THIS INDICTMENT CHAESHAT
THIS COURT DESCRIBES AS UN TO
SCRIPTABLE POWERS BY THE
PRIDT.
THEY ARE PURPORTING TO REGULATE
THE EXERCISE OF THE PRESIDENT,
THINGS LIKE HIS ABILITY TO SPEAK DIRECTLY TO THE AMERICAN PUBLIC
AND CORE EXERCISES OF HIS
AUTHORITY UNDER THE REMMENDATIONS CLAUSE.
THE MEASURES HE THINKS NESRY
AND EXPEDIENT.
YOU HAVE AN INDICTMENT OF THIS
CASE THAT GOES OF THE HEARTLAND
OF THE PRESIDENT'S POWERS.
IT ALLEGES A SERIES OF OFFICIAL
TS AND TRIES TO TIE THEM
TOGETHER BY SAYING THERE WAS A
PRIVATE PURPOSE IN THAT CASE AND
THAT'S THE SITUATION WHICH COULD
BE -
>> IT HAS TO BE ALLEGED BUT IT
HAS TO BE PROVEN.
IT'S A CONCEPT LONG VIEWED AS AN
-- IS APPROPRIATE THAT THERE IS
SOMETHING SO FUNDAMENTALLY EVIL
THAT THEY HAVE TO BE PROTECTED AGNST.
I THINK AND YOUR AWER BELOW, I
WILL GIVE YOU A CHANCE TO SAY IF
YOU STAY BY IT -- IF THE
PRESIDENT DECIDES THAT HIS RIVAL
IS A CORRUPT PSOAND HE
ORDERS THE MILITARY OR ORDER
SOMEONE TO ASSASSINATE HIM, IS
THAT WITHIN HIS OFFICIAL ACTS
R WHICH HE CAN GET IMMUNITY?
>> THAT COULD WELL BE AN
FIAL ACT. >> ICOD AND HE'S DOING IT
FOPERSONAL REASONS. HE'S NOT DOING IT LIKE PRESIDENT
OBAMA'S ALLEGED TO HAVE DONE IT
TO PROTECT THE COUNTRY FM
TERRORIST.
HE'S DOING IT FOR PERSONAL GAIN.
ISN'T THAT THE NATURE OF THE
ALLEGATIONS HERE? THAT HE'S NOT DOING THEM --
THESE ACTS FOR FURTHAN OF AN
OFFICIAL RESPONSIBILITY.
HE'DOING IT FOR PERSONAL GAIN.
>> I AGREE WITH THE
CHARACTERIZATION IN THE INDICTMENT AND THAT CONFIRMS
BECAUSE THE CHARACTERIZATION IS
THAT THE SERIES OF OICL ACTS
-- >> COMMUNITY SAYS EVEN IF YOU
DID IT FOR PEON GAIN, WE
WILL HOLD YOU RESPONSIBLE.
HOW COULD THAT BE? >> THAT'S AN EXTREMELY STRONG
CONTRADICTION OF THIS CASE.
>> WE GO BACK TO JUSTICE
THOMAS'S QUESTION WHICH IS WHERE
DO TT COME FROM?
THERE ARE AMICA WHO TELL US THE
FOUNDERS ACTUALLTAED ABOUT
WHETHER TO GRANT IMMUNITTOHE
PRESIDENT.
IN FACT, THEY HAD STE
CONSTITUTIONS THAT GRANTED SOME
CRIMINAL IMMUNITY TO GOVERNORS.
AND YETH DIDN'T TAKE IUP
INSTEAD, TY PASSED AN
IMPEACHMENT CLAUSE THAT
BASICALLY SAYS YOU CANNOT REMOVE
THE PRESIDENT FROM OFFICE EXCEPT
BY A TRIAL IN THE SENATE BUT YOU
CAN IMPEACH HIM AFTER.
OROU CAN IMPOSE CRIMINAL
LIABILITY. WE WOULD BE CATING A SITUATION
IN WHICH WE WOULD BE SAYING,
THISS AT YOU ARE ASKING US
TO SAY WHICH IS THAT A PRESIDENT
IS ENTITLED NOT TO MAKE A
MISTAKE BUT MORE ANHAT.
THE PRESIDENT IS ENTITLED FOR
TOTAL PERSONAL GAIN TO USE THE
TRAPPINGS H OICE, THAT'S
WHAT YOU ARE TRYING TO GET US TO
HOPE.
WITHOUT FACING CRIMINAL LIABILITY.
>> I WOULD SAY THREE THINGS IN
RESPONSE.
THE DOCTRINE THAT IMMUNITY DOES
NOT TURN ON ALLEGLYROPER
MOTIVATION IS SOMETHING THIS
COURT HAS REAFFIRMED IN AT LEAST
NINE OR 10 -- >> ABSOLUTE IMMUNITY BUT
QUALIFIED IMMUNITY SAYS WHATEVER
ACT YOU TAKE HASO BE WITHIN
WHAT A REASONABLE PERSON WOULD DO.
I'M HAVING A HARD TIME THINKING
THAT CREATING FALSE DOCUMENTS
THAT SUBMITTING FAE DOCEN,
THAT ORDERING THE ASSSATION
OF AIV, ACCEPTING A BRIBE
AND COUNTLESS OTHER LAWS THAT
COULD BE BROKEN FOR PERSONAL
GAIN, THAT ANYONE WOULD SAY THAT
IT WOULD BE REASONABLE FOR
PRESIDENT OR ANY PUBLIC OFFICIAL
TO DO THAT.
>> THIS WAS ANSWED VERY
PERSUASIVELY IN FITZGERALD THAT
THIS PARTICULAR ACT WOULD B
DONE FOR AN UNLAWFUL PURPOSE OR
WASNLOVED LAWFUL COULD BE IN
EVERY CASE AND THEREFORE IF THA
WAS THE DOCTRINE THAT THE
ALLEGAONF IMPROPER PURPOSES WHAT DEPRIVES THE OBJECTIVE A
OR OF IMMUNITY THAT IMMUNITY
WOULD HAVE N PURCHASE AND
THAT'S REFLECTED IN MANY CASES.
>'THE WORK OF THE
IMPROPER MOTIVE AT LEAST IN THE
ABSOLUTE IMMCONTEXT TO
TELL UWHAT OUR OFFICIAL ACTS
AND WHATREOT?
I UNDERSTOOD THAT EVEN -- FIRST
OF ALL, YOUR ASK IS YOUR
PRINCIPAL POSITION.
YOU WANT THEAMKIND OF
DOCTRINE WE'VE APPLIED IN OTHER
CONTEXTS WHEN YOU SAY IN
OFFICIAL HAS ABSOLUTE IMMUNITY.
MY UNDERSTANDING IS WHEN WE SA
THAT, WE MEAN FOR THEIR OFFICIAL
ACTS.
IS THAT RIGHT?
>> YES.
>> SO ANY OFFICIAL ACTS IN THAT
WORLD, THE REAL DECISION-MANG
FROM A COURT STANDPOINT IS
WHETHER OR NOT SOMETHI IAN
OFFICIAL ACT OR NOT, CORRECT?
>> TT'S AN IMPORTANT
DETERMINATION.
>>T'S THE DETERMINATION IN
THABSOLUTE IMMUNITY WORLD
BECAUSE OF YOU DETERMINE IT'S AN
FIAL ACT, THEN THE PRINCIPLE
IS YOU GET IMMUNITY FO IT,
CORRECT? >> THAT IS CORRECT.
>> MY QUESTION IS HOW DO YOU
DETERMINE OR MAYBE JUSTICE
THOMAS, HOW D DETERMINE
WHAT'S OICIAL ACT? WE TALK ABOUT THE KINDS OF
SCENARIOS JUSTICE SOTOMAYOR
BROUGHTP,NE COULD SAY THAT
WHEN THE PRESIDENT IS USING THE
TRAPPINGS OF HIS OFFICE TO
ACHIE PERSONAL GAIN, HE'S
ACTUALLY NOT ACTING OFFICIALLY
EVEN AT THE DOCTRINE WAS
ABSOLUTE IMMUNITY SO WHAT DO YOU
SAY ABOUT THAT? >> TO THE LAST POINT, TT
ALLEGATION THAT THIS WAS
MOTIVATED BY AN IMPROPER PRIVATE
PURPOSE COULD BE MADE IN EVERY
SINGLE CASE.
>>NDERSTAND THAT BUT IT
WOULD HAVE TO BE MADE JUST EVEN
IF WE HAD THE DOCTRINE OF
ABSOLUTE IMMUNITY, THAT SAME
LEGATION AND THE FACTS RELATED
TO IT WOULD COME IN BECAUSE TH
PERSON WOULD BE ARGUING THAT HE
WAS NOT ACTING IN HIS OFFICIAL
CAPACITY AND NOT DOING SOMETHING
OFFIALHE WAS DOING IT
PERSON, RRECT? >> AEE BUT THE OBJECTIVE --
THE POINT I WOULD MAKE IS THAT
IN FITZGERALD, THEY EMPHASIZE
THAT WOULD RESULT IN AN
INTRUSIVE DISCUSSION OR DETEINION OF THE PRESIDENTS
PERSONAL MOTIVES EVERY OFFICIAL
ACT.
THIS IS NOT JUST IN THE CASE OF >> ANOTHER QUICK QSTION BEFORE
MY COLLEAGUES TAKE IT OVER --
AT THE BEGINNING OF YOUR
ANALYSIS WHEN YOU'RE GIVING YOUR
OPENING STATEMENT, YOU WERE
TALKING ABOUT, YOU SUGGESTED THE
LAST OF IMMUNI A THE
POSSIBILITY OF PROSECUTION IN
THE PRIDTIAL CONTACTS IS
LIKE AN INNOVATION.
I TOOD TO BE THE STATUS
QUO. IERSTOOD THAT EVERY
PRESIDENT FROM THE BEGINNING OF
TIME ESSENTIALLY HAS UNDERSTOOD
THAT THERE WAS A THREAT OF
PROSECUTION IF FOR NO OTHER
REASON THAN THE NSTUTION
SUGGESTS THEY CAN BE PROSECUTED
AFTER IMPEAME, THAT THE
OFFICE OF COUNSEL HAD SAID
FOREVER THAT PRESIDENTS ARE
AMENABLE TO A THREAT OF
PROSECUTION AND THEY HAVE
CONTINUED TO FUNCTION AND DO
THEIR JOB AND DO ALL THE THINGS
PRESIDENTS DO. IT SEEMS TMEHAT YOU ARE
ASKING NOW FOR A CHANGE IN WHAT
THE LAW IS RELATED TO IMMUNITY.
>> FROM WHAT BENJAMIN FRANKL
SAID AT THE CONSTITUTIONAL
CONVENTION WHICH REFLECTS THE
FODE ORIGINAL UNDERSTANDING
AND TENURE WHICH IS AT THE
CONSTITUTIONAL CONVENTION,
BENJAMIN FRANKLIN ID HIS THREE
-- THIS PROVIDES ONE EXAMPLE
ONLY OF A CHIEFAGTRATE WHO
IS SUBJECT TO CRIMINAL
PROSECUTION AND EVERYBODY CRIED
OUT AGAINST THAT. >> I UNDERSTAND BUT SINCE
BEAM FRANKLIN, EVERYBODY HAS
THOUGHT INCLUDING THE PRESIDENTS
WHO HELD THE OFFICE THAT THEY
WERE TAKING THIS OFFICE SUBJECT
TO POTENTIAL CRIMINAL
PROSECUTION, NO?
I SEE THE >> EVIDENCE INTHE
OTHER WAY.
MARBURY VERSUS MADISON DISCUSSES
BROUGHIMNITY. >>HAWAS UP WITH THE PARDON
R PRESIDENT NIXON?
EVERYBODY THOUGHT THAT
PRESIDENTS COULDN'T BE
PROSECUTED, THAN WHAWATHAT ABOUT?
>> HE WAS UNDER INVESTIGATIONT
THE TIME WITH OFFICIAL AND
PRIVATE CONDUCT.
EVERYONE UNDERSTANDS THAT SINCE
PRESIDENT GRANTS CARRIAGE
WRITING INTO -- INCIDENT,
EVERYBODY HAS UNDERSTOOD THAT
E PRENT CAN BE PROSECUTED.
>> THERE SEEMS TO BE COMMON
GROUND BE JUST BETWEEN YOU AND
YOUR COLLEAGUE AND THE O
SIDE THAT NO MAN IS ABOVE THE LAW AND THE PRESIDENT CAN BE
PROSECUTED AFTER USING HIS
OFFICE FOR HIS PRIVATE CONDUCT,
IS THAT RIT? >> WE AGREE WITH THAT.
>> AS WE BEEN EXPLORING TODAY,
THQUESTION BECOMES AND HOW TO
SEGREGATE PRIVATE FROM OFFICIAL
CONDUCT THAT MAY OR MA NOT
ENJOY SOME IMMUNITY AND I'M SURE
WE WILL SPEND A LOT OF TIME
PLORING THAT.
IN BLASINGAME, THE CHIEF JUSTICE
EXPRESS SOME VIEWS ABOUT HOW TO
SEGREGATE PRIVATE CONDUCT FOR
WHICH NO MAN IS ABOVTH LAW
FROM OFFICIAL ACTS.
DO YOU HAVE ANY THOUGHTS ABOUT
THE TEST THEY CAMEP TH THERE?
>>SPECIALLY IF IT'S UNDERSTOOD
THROUGH THE LENS OF A SEPARATE
OPINION IS A PERSUASIVE TEST.
IT WOULD BE A GREAT SOURCE FOR
THIS COURT TO RELY ON.
ITMPSIZES THE BREADTH OF
THAT TEST AND TALKS ABOUT HOW
ACTIONS THAT ARE PLAUSIBLY
CONNECD THE PRESIDENT'S
OFFICIAL DUTIE ARE OFFICIAL
ACTS ANDT EMPHASIZES BUT CSE
CASEF HER CONSIDERATIONS
THAT SHOULD BE TREATED AS IMMUNE.
THOSE ARE THE ASPECTS OF GUIDING
THIS. >> IT LEFT OPEN IN THAT CASE THE
POSSIBILITY OF FURTHER PROCEEDINGS AND TRIAL.
>> EXACTLY RIGHT AND THAT WOULD
BE A NATURAL CRSFOR THIS
COURT TO TAKE IN THIS SE THE COURT SHOULD AND REVERSE THE
DCC THAT THERE IS NO THING IS
OFFICIAL ACTS --
>> YOU WOULD AGREE FURTHER
PROCEEDINGS WOULD BE REQRE
>> THAT'S CORRECT.
I WOULD POINT TO ANDERSON VERSUS
CREIGHTON WHERE THER IS TWO
STAGES OF PROCEEDIS.
THERE IS LOOKING AT THE
INDICTMENT AND THE CHARGING
DOCUMENTS AND SEE IF ALLEGING
OFFICIAL ACTAN IF NOT,
DETERMINE THERCOD BE A
FACTUALROEDING UNDER
MITCHELL AGAINST FORESIGHT --
AGAINST FOT WOD HAVE TO
OCCUR. >>> GO AHEAD.
>> YOU BEGIN WHAT YOU BELIEVE
THAT IMMUNITY FROM CRIMINAL
PROSECUTION IS ESSENTIAL FOR
PROPER FUNCTIONING OF THE
PRESIDENCY.
MY QUESTION IS WHETHER THE VERY
ROST FORM OF IMMUNITY YOU ARE
ADVOCATING IS REALLY NECESSARY
IN ORDER TO ACHIEVE THAT RESULT.
JUST TO TAKE O PSIBLE
ALTERNATIVE, SUPPOSE THE RULE
WHERE THAT A FORMER PRESINT
CANNOT BE PROSECUTED FOR
OFFICIAL ACT UNLESS NO PUSIBLE
JUSTIFICATION COULD BE IMAGINED
R WHAT THE PRESIDENT DID,
TAKING INTO ACCOUNT HISTORY AND
LEGAL PRECEDENT A T
INFORMATION THAT WAS PROVIDED TO
E PRESENT AT THE TIME WHEN THE
ACT WAS TAKEN.
WITH THAT BE SUFFICIENT?
OR WHY WOULD IT BE IN FOR
SUFFICIENT?
>> THAT MIGHT BE MH BETTER
RULE THAT WHAT EMERGED IN THE
LOWER COURSE.
WE THINK IT WOULD BE INSUFFICNTECAUSE THE LAW IS
TALKING ABOUT USING E
PRESIDENTS MOTES A INTRUSIVE
CONSIDERATION OF THE PRESIDENTS
MOTIVES AS TRANSFORMING ACTS OFFICIAL AND UNOFFICIAL WOULD
COME INTO PLAY.
ONCE YOU CAN MAKE THAT
ALLEGATION, THEN YOU'VE OPENED THE DOOR
YOU NO LONGER HAVE A CLEAR RULE.
YOU HAVE A DETERMINATION IN
ERSINGLE CASE.
>> WHAT IF DID NOT INVOLVE
ANY OBJECTIVE, IT WOULD LOOK
OBJECTIVELY AT THE VARIOUS
RELEVANT FACTORS.
>> THAT SOUNDS A LOT LIKE
BLASINGAME.
IF YOU LOOK AT THE SEPARATE
OPINION, TT Y NOT BE
DIFFERENT THAN ATE PROPOSE
IN COURT TODAY. >> FLASHING GAME HAD TO DO WITH
THE DIFFERENT DREAM PRIVATE AND
OFFICIAL CONDUCT.
THAT'S WHAT I UNDERAN
>> THIS WOULD APPLANIT'S A
POSSIBILITY BUT I DON'T OW
WHETHER IT'S A GOOD OR BAD IDEA
OR CAN BE RID FROM THE
STRUCTURE OF THEONITUTION OR
ANY OTHER SOURCE.
BUT TH WLD BE APPLIED IN A
TRULY OBJECTIVE GROUNDS.
WHEN THE PRESIDENT INVOKES AN
OFFICIAL POWER IN TAKING THE
ACTION THAT IS AT ISSUE. >> THE REASON I THINK OF
BLASINGAME AS IT TALKS ABOUT AN
OBJECTIVE CONTEXT WITH SPECIFIC
DETERMINATION TO WINNOW OUT
WHAT'S OFFICIAL AND PRIVATE
CONDUCT.
>> I'M SORRY, IF I UNDERSTOOD
JUSTICE ALITO, HE SUGGESTING NOT
THAT. HE SUGGESTING WHETHER EVEN IF IT
IS AN OFFICIAL ACT WHETHER YOU
STILL GRANT IMMUNITY IF THAT ACT
DOES NOT PLAUSIBLY VIEWED AS
WITHIN THE REALM OF LAW.
HE CAN CORRECT ME IF I'M WRONG.
>> THAT WAS THE QUESTION.
>> THAT I THINK WOULD BE A
SUPERIOR RULE THEN WHAT IS IN
THE CATEGORICAL FILE THAT
EMERGED IN THE TRIAL.
>> I'M NOT QUITE SURE WHYE E
THE WORD PLAUSIBLE BECAUSE THAT
SEEM TO NEGATE, MIGHT IS WELL
GIVE ABSOLUTE IF YOU SAY PROUD
AUBLE BECAUSE ANYBODY COULD
ARGUE PLAUSIBILITY.
WE DON'T EVEN REQUIRE PLAUSIBLE, WE REQUIRE REASONABLE AND
QUALIFIED IMMUNITY.
>> OHT AUE THAT IT IS
NOTLAUSIBLY LEGAL TO ORDER
SEAL TEAM SIX AND I DON'
TO SLANDER SEAL TEAM SIX BECAUSE
SERIOUSLY THEY ARE HONORABLE.
THEY ARE BOUND BY THE UNIFORM
CODE OMITARY JUSTICE NOT TO
OBEY UNLAWFUL ORDERS.
THINK ONE COULD SAY THAT IT'
NOTLAIBLE THAT THAT IS
LEGAL, THAT THE ACTION WOULD BE GA
I'M SURE YOU'VE THOUGHT OF LOTS
OF HYPOTHETICALS AND 'M SURE
YOU HAVE AS WELL WHERE PRESIDENT
COULD SAY I'M USING AN OFFICIAL
POWER AND YET THE PRESIDENT USES
IT IN AN OUTRAGEOUS MANNER.
>> THAT MAY WELL BE AN OBJECTIVE
DETERMINATION.
>> APPLY IT THE ALLEGATIONS
HERE.
WHAT IS PLAUSIBLE ABOUT T
PRESIDENT ASSISTING IN CREATING
A FRAUDULENT SLATE OF ECRAL
CANDIDATES.
ASSUMING YOU A SECT THE FACTS OF
THCOLAINT ON THEIR FACE, IS
THAT PLAUSIBLE THAT THAT WOULD
BE WITHIN HIS RIGHTS TO DO?
>> ABSOLUTELY, WE'VE HAD
HISTORICAL PRECEDENT WITH
ESIDENT GRANT SENDING FEDERAL
TROOPS TO MISSISSIPPI TO MAKE
SURE THE REPUBLICANLEORS GOT
CERTIFIED IN THOSE TWO CASES
ICDELIVERED THE ELECTION TO
RUTHERFORD B HAYES.
THE NOTION THAT THAT IS
IMPLAUSIBLE, CAN'T BE SUPPORTED
BASED ON THIS INDICTMENT -
>> KNOWING THAT E SLATE IS
FAKE AND THEY WEREN'T ACTUALLY
ELECTED AND THEY WEREN'T
CERTIFIED BY THE STE, HE KNOWS
ALL THOSE THINGS? >> THE INDICTMENT ITSELF ALLEGES
AN EFFECTS OF WORD LABEL TO THE
WORD FRAUDULENT.
THAT'S A COMPLETE MIXED
CHARACTERIZATI.
IT WAS THERE NO DECEIT ABOUT WHO
HAD EMERGED FROM THE CVEION
AND THIS WAS DONE ON AN
ALTERNATIVE BASIS.
WA TO ADDRESS THE HIGHER
LEVEL POINT WHICH IS THAT THERE
IS A WHOLE SERIES OF STRUCTURAL
CHECKS OTHER THAN CRIMINAL
PROSECUTION THAT ARE DESIGNED TO
TER THESE KINDS OF OUTLANDISH
SCENARIOS OR OBVIOUSLY ILLEGAL
THINGS.
THAT'S BEEN VIEWED IN THIS
COURT'S OP --
>> WHERE DO YOU THINK THE D.C.
CIRCUIT JUDGE WRONG AND HOW IT
VERSUS WHAT PERSONAL?FFICIAL
>> I RD E OPINION BELOW IN
THIS CASE.
IT DOES NOT MATTER THE LOGIC OF
THEIR OPINION.
THERE IS NO IMMUNITY FOR
OFFICIAL ACTS AND THEREFORE THAT
THE END OF THE STORY.
I DON'T REALLY THINK THEY WENT
WRONG IN BLASINGAME WHEN THEY
ENGAGED IN THE SAME
DETERMINATION WITH RESPECT TO
WHAT'S OFFICIAL AND WHAT ISN'T.
THERE WE AGREE WH ST OF WHAT
THAT OPINION SAYS. >> FOR SOME OFFICIAL AS AT
ARE NOT WITHIN THE ARTICLE TO
EXCLUSIVE PER SO OFFICIAL ACTS
BUT NOT WITHIN THE ARTICLE TO
EXCLUSIVE POWER, EVEN FOR THOSE,
I ASSUME YOU WOUL THINK THAT A
CLEAR STATEMENT HAS TO BE
REQUIRED, CLEAR STATEMENT IN THE
STATUTE COVERING THE PRESIDE
IF THE OFFICIAL ACTS ARE GOING
TO BE CRIMINALIZED. >> OBVIOUSLY,T E HIGHEST
POSSIBLE LEVEL WHEN IT COMES TO
THE UNRESTRICTED WILL POWERS IN
THIS INDICTMENT --
>> I'M ASSUMING T ELUSIVE
POWERS ARE WALLED OFF AND CAN'T
PROSECUTED.
THERE ARE A LOT OF OFFICIAL
POWERS THAT ARE T CLUSIVE TO
THE PRESIDENT UNDER ARTICLE TWO AUTHORIT
FOR THOSE, I UNDERSTOOD YOU TO
SAY AA NIMUM, THERE WOULD
NEED TO BE CARTATEMENT IN
THE STATUTE REFERENCING THE
PRESIDENT SO THAT THE PRESIDENT IS ON NOTICE AND CAN CONDUCT
HIMSELF OR HSE ACCORDINGLY.
>> THAT'S CORRECT AND THAT WOULD
BE CONSISTENT.
>> CAN IW UPN THAT?
YOU CAN SEE THE PRIVATE ACT
DON'T GET IMMUNITY.
>>E DO.
>> IN THE SPECIAL COUNSEL BRIEF
ON PAGES 46 AND 47, UES US
EVEN IF WE ASSUME OR WERE TO
DECIDE OR ASSUMTHE WAS SOME
SORT OF IMMUNITY FOR OFFICIAL
ACTS THAT THERE WAS INSUFFICIENT
PRIVATECTMEANT FOR THE TRIAL
--OR THE CASE TO GO BACK INTO TRIAL IMMEDIATELY.
I WANTO KNOW IF YOU AGREE OR
DISAEEBOUT THE CHARACTERIZATION OF THESE ACTS
AS PRIVATE.
THE COMMISSIONERS LET THAT
SPREAD TO A PRIVATE ATTORNEY AND
WAS WILLING TO SPREAD RUMORS
ABOUT ELTION RESULTS.
>> IT SOUNDS PRIVATE.
>> GEEK CONSPIRED WITH ANOTHER
IVATE ATTORNEY THAT HAD THE
FALSE ALLEGATION TO SUPPORT A
CHALLENGE. >> THAT ALSO SOUNDS RIGHT.
>> THREE PRIVATE ACT THROU
ATTORNEYS AND A POLITICAL
CONSULTANT HELP IMPLEMT PLAN TO SUBMIT FRAUDULENT ELECTORS TO
OBSTRUCT THE CERTIFICATION
RESULTS. >> BELIEVE THAT'S PRIVATE.
>> SO THOSE ACTS YOU WOULD NOT
DISPUTE, THOSE WERE PRIVATE AND
U ULDN'T RAISE A CRANK --
RAISE A CLAIM THEY WERE
OFFICIAL? >> BUT WE WOULD SAY IS OFFICIALS
THINGS LIKE BEING WITH THE
DEPAME OF JUSTICE TO
DELIBERA AUT WHO WILL BE THE
ACTING INTERNAL -- ATTORNEY
GENERAL OF UNITED STATES,
COMPARING CADETS COMMITTED
GETTING TO THE PUBLIC OR THE SENATE.
>> THANK YOU. >> YOU, COUNSEL AND WHAT
IS THE CONSEQUENCE IN TERMS OF
GOING FORWARD WITH YOUR
ACKNOWLEDGMENT THAT THOSE ARE
PRIVATE ACTS AS OPPOSED TO
OFFICIAL ACTS? >> IF YOU LOOK A THE INDICTMENT
HERE, THERE'A BUNCH OF ACTS
THAT ARE CLEARLY OFFICIAL.
THERE MAY BE ALLEGATIONS THAT
MOST RATTO WHAT THE
GOVERNMENT HAS DESCRIBED AS
PRIVATE AIM OR END AND THE COURT
SHLD ADDRESS ITS OUTPUT REMAND
FOR A BREWSTER LIKE
DETERMINATION LIKE WHAT'S
OFFICIAL AND WHAT'PRATE.
THE OFFICIAL STUFF HAS TO BE
EXPUNGED FROM THE INDICTMENT AND
THERE HAS TO BE A DETERMINATION
OF WHAT'S OFFICIAL TO STAGE A
DETERMINIO
>> IF YOU EXPUNGE THE OFFICIAL
RT FROM THE INDTMT, THAT'S
LIKE A ONE LEGGED STOOL.
GIVING SOMEBODY MEY IS NOT
BRIBERY UNLESS YOU GET SOMETHING IN EXCHANGE.
WHAT YOUET IN EXCHANGE THE
COME THE INVESTOR OF A
COUNTRY, THAT IS OFFICIAL THE
APPOINTMENT IT'S WITHIN THE
PRESIDENT'S PREROGATIVE.
THE UNOFFICIAL PAR IS I WILL
GET A MILLION DOLLARS FOR IT.
IF YOU SAY YOU HAVE TO EXPGE
THE OFFICIAL PART, HOW DOES THAT GO FORWARD?
>> THIS PARTICULAR INDICTMENT,
WE DON'T BELIEVE IT WOULD BE
ABLE TO GO FORWARD.
IF YOU LOOK AT THE GOVERNMENT'S
BRIEF IN HIS CASE DIVIDES THE
INDICTMENT INTO IN OTHER
THAN THE ELECTORS ALLEGATIONS.
THEY HAVEN'T DISPUTED IT IFHE
ARE OFFICIAL ACTS BUT THEY SAY
WE TIED TOGETHER BY
CHACRIZING IT AS DONE IN THE
ALLEGATIONS THE COURT JUST REFERRED TO BY AN IMPROPER
PRIVATE AIM WERE END THAT JUST
RUNS AT LOGGERHEADS.
THE IMPROPER MOTIVATION IS WHAT YOU LOOK AT.
>> JUSTICE THOMAS?
>> IN ASSESSING THE OFFICIAL
ACTS OF A PRESIDENT, DO YOU
DIFFERENTIATE BETWEEN PRESIDENT
ACTING AND THE PRESIDENT ACTING
AS A CANDIDATE?
>> YES, WE DO.
WE DON'T DISPUTE THE BLAZING
ME OBJECTIVE OF THAT.
>> IN THIS LITIGATION, DID Y
CHALLENGE THE APPOINTMENT OF
SPECIAL UNL?
>> NOT DIRTLBUT WE HAVE DONE
SO LIKE IN THE FLORIDA CASE AND WE AGREE WITH THE ANALYSIS
PROVIDED BY ATTORNEY GENERAL
MEESE AND CASEY AND ITOIS TO
AN IMPORTANT ISSUE.
ONE OF THEIRRGENTS IS THAT
WE SHOULD HAVE THE ASSUMPTION OF
REGULARITY.
THAT RUNS INTO THE REALITY WE
HAVE HERE AN EXTRAORDINARY
PROSECUTOR EARLY DISH
PROSECUTORIAL POWER EXERCISED
AND CONFIRMED BY THE SENATE AT
ANY TIME.
WE AGREE WITH THAT POSITION.
WE HAVEN'T RAISED IT YET IN THIS
CASE WHEN IT WENT UP ON APPEAL.
>> JUSTICE ALITO?
>> WEN YU STADIA OFFICIAL ACTION
BE EXPUNGED FM THE INDICTMENT,
THAT IN ITSELF WOULD NOT ACHIEVE
MUCH UNLESS EVIDENCE OF THOSE
OFFICIAL ACTS WERE PCLED AT
TRIAL.
IS THAT WHAT YOU ARE SAYING,
THAT PROSECUTION SHOULD NOT BE
PEITD AT TRIAL TO PROVE THE
OFFICIAL ACTS AS PART O THE
CONSPIRACIES TT E ALLEGED?
>> ABSOLUTELY AND THAT'S THE
CLEAR INDICATIONS OF BREWSTER
AND JOHNSON.
>> THANK YOU. >> I'M A LITTLE BIT NFED BY
THAT.
IF YOU HAVE A SCHEME TOEFRAUD
OR A SCHEME TO ACCEPT BRIBERY,
THERE IS EVIDENCE FROM WHICH YOU
N FER THAT SCREEN -- THAT
SCHEME AND ONE IS THE
APPOINTMENT ACTUALLY HAPPENED.
IT'S AN OFFIAACT.
YOU WOULDN'T EXPUNGE THAT AS
EVIDENCE.
YOU WOD STRUCT THE JURY TT
THERE IS NO VIABILITY FOR THE
ACTUAL APPOINTMENT.
THE LIABILITY IS FOR ACCEPTING
THE BRIBE.
SIMILARLY HERE, I DON'T INK
THE INDICTMENT IS CHARGING THAT
THE OBSTRUCTION OCCURRED SOLELY
BEUSOF CONVERSATIONS WITH
THE JUSTICE DEPARTMENT.
THEY ARE SAYING YOU LOOK AT ALL
OF THERITE ACTS AND YOU LOOK
IN THE CONTEXT OF SOME OF THE
PUBLIC ACTS AND YOU CAN INFER
E TENT, THE PRIVATE INTENT
FROM THEM.
I'M NOT SURE THAT I UERSTAND
WHY YOUR PROBLEMS COULDN'T BE
TAKEN CARE OF AT TRIAL WITH AN
INSTRUCTION IF WE BELIEVE, IF
THE COURT WERE TO FIND AND I'M
NOT SURE HOW THEY COD T IF
IT WERE TO FIND THASO PUBLIC
ACTS COULD NOT BE THE BASIS OF
CRIMINAL LBITY. >> THE BEST THING I CAN SAY TO
THAT AND I THINK THIS TIES INTO
THE CHIEF JUSTICE'S QUESTION
ABOUT A ONE LEGGED STOOL.
ROOSTER AND JOHNSON IN
SUBSEQUENT CALLUSE ESSENTIALLY
SAY THAT THAT THIS A ONE
LEGGED STOOL PROBL.
SOME OF THE PROSECUTIONS CAN
PROCEED IN THAT THE IMPLICATION
OF OFFICIAL IMMUNITY WHICH IS
DICTATED IN THE CONSTITUTION BY
THE EXECUTIVE VESTING CLAUSE.
>> TO CONTINUE ON IN JUSTIC
BARRETT'S VEIN AND ASK YOU ABOUT
SOME OF THE ALLEGATIONS OF THE
INDICTMENT AND WHETHER THEY ARE
OFFICIAL ACTS WERE NOT IN YOUR VI.
THE DENDANT SIGNED A
VERIFICATION AFFIRMING FULL
SELECTION OF FRAUD AND ALLEGATIONS MADE OHI BEHALF
ON A LAWSUIT FILED IN HIS NAME
AGAINST THE GEORGIA GOVERNOR.
>> I DON'T THINK WE'VE DISPUTED
THAT.
THAT IS UNOFFICIAL.
>> SAME FOR THE DEFDA
CALLING THE CHAIRWOM OTHE
REPUBLICAN NATIONAL CMITTEE
AND ESTHER TOGETHER ELECTORS D
TARGETED STATES FALSELY
REPRESENTED THAT SUCH ECRS
VOTES WOULD BE USED ONLY OF
ONGOING LITIGATION AND ONE OF
THE STATES CHANGED THE RESULTS
OF T DEFENDANTS FAVOR?
>> WE HAVE TAKEN THE PITN
THAT THAT'S OFFICIAL. >> WHY WOULD THAT BE OFFICIAL?
>> IT'S BASED ON THE HISTORICAL
EXAMPLE OF PRESIDENT GRANT AND
I'S SOMETHING THAT WAS DONE
PURSUANT TO THE EXERCISE OF THE
CORE RECOMMENDATION CLAUSE
POWER. >> COULDN'T HE HAVE TAKEN THIS
ACTION JUST IN THE STATUS OF A
CANDIDATE? >> THE FACT THAT HE COULD HAVE
DONEO DOESN'T DEMONSTRATE THAT
HE DID DO SO.
BASED ON THE ALLEGATIONS, IT'S
CLEAR HE DID NOT THAT THIS WAS
DONE IN AN OFFICL CAPACITY.
>> THE DEFENDANT ASKED THE
ARIZONA HOUSE SPEAKER TO CALL
THE LEGISLATURE INTO SESSION TO HOLD A HEARING BASED ON THEIR
CLMSF ELECTION FRAUD.
>> ABSOLUTELY, AND OFFICIALCT
FOR PRESIDENTO COMMUNICATE
WITH STATES TO DEFEND THE
INTEGRITY OF A FEDERAL ELECTION
AND COMMUNICATE WITH STATE
OFFICIALS AND URGE THEM TO VIEW
WHAT HE VIEWS AS THEIR JOB UNDER
STATE LAW AND FER LAW.
THAT'S AN OFFICIAL ACT.
>> ATTEMPTING TO DEFEND THE
INTEGRITY OF THE ELECTION IS THE
DENSE.
THE ALLEGATIONS THAT HE WAS
ATTEMPTING TO OVERTHROW AN
ELECTION. >> EXACTLY RIGHT A NTHER
ALLEGATION SHOULD MAKE A
DIFFERENCE AS TO WHETHER HE'S
IMMUNE. THAT'S EXTREMELY STRONG WITH
THIS COURT. >> DOES IT STRIKE YOU AS ODD
THAT YOUR UNDERSTANDING OF
IMMUNITY GOES WAY BEYOND WHAT
OLC HAS EVER CLAIMED FOR A
FORMER PRESINT
>> THE OPINIONS HERE ARE STRONG
SUPPORTING US BECAUSE ANY TIME A
CONGRESSIONAL STATUTE GONE
TOUCHING THE PRESIDENT'S
PREROGATIVES, THEY SAID WE WILL
INTERPRET THETATE NARROWLY
TO AVOID IT. >> THAT'S A DIFFERENT QUESTION.
WHAT OLC HAS ALWAYS SAID THAT
SITTING PRESENCE GET IMMUNITY BUT RM PRESIDENT'S?
NO.
THERE MIGHT BE A DIFFERENT
ARGUMENT MADE ABOUT WHETHER A
STATUTE OR WHETH A STATUTE I
APPLIED TO A PARTICULAR CONDUCT
IS PROPERLYVAABLE AGAINST
THE PRESIDENT.
THAT'S A VERY DIFFERENT ARGUMENT
THAN THE IMMUNITY CLAIM THAT YOU
ARE MAKING HERE.
OLC HAS DEFINITIVELY NOT
SUPPORTED THIS.
>> I DON'T KNOW IF I WOULD PUT
IT THAT WAY.
I DON'T RECALL THEM ADDRESSING
IT BUT THERE IS THE LANGUAGE OF
CAS LIKE MARBURY AND
STATEMENTS MADE BY BJAMIN
FRANKLIN AT THE CONSTITUTIONAL
CONVENTION, STATEMENTS OF OR WASHINGTON TALKING ABOUT THE
MASSIVE RISK OF STRIFE AND HOW
THAT COULD DESTROY THE
GOVERNMENT
THAT'S WHAT WE RELY ON
PRCIPALLY.
MY SITTH OLC OPINIONS BECAUSE
IFHERE'S ANY STATUTE THAT
GHT IMPACT ON THE PRESIDENT'S
PREROGATIVES, THEY INTERPRETED
TOVOID THAT.
>> IF A PRESIDENT SELLS NUCLEAR
SEEKERS TO A FOREIGN ADVERSARY,
IS THAT IMMUNE?
>> THAT SOUNDSIMAR TO THE
BRIBERY EXAMPLE AND LIKELY NOT
IMMUNE.
YOU HAVE TO BE IN PEACE AND
CONVICTED FIRST. >> WHAT DOES IT MEAN IIT
STRUCTURED AS AN OFFICIAL ACT?
>> I DON'T KNOW WTHER THAT
WOULD BE AN OFFICIAL ACT.
YOU'D HAVE TO APPLY A DIFFERENT
ANALYSIS. >> HOW ABOUT IF A PRESIDENT
ORDERS THE MILITARY TO STAGE A
COUP?
>> AS THE CHIEF JUSTICE POINTED OUT EARLIE TRE IS A WHOLE
SERIES OF GUIDELINES AGAINST
THAT.
UCMJ PROHIBITS THE ARMY OM
FOLLOWING A PLANE FOR NO LAWFUL
T.
IF ONE ADOPTS THE FITZGERALD
TEST, THAT MIGHT BE IMPEACHED
AND CONVICTED BEFORHES
CRIMINALLY PROSECUTED.
>> THIS PRESIDENT WILL ORDER THE
LITARY TO STAGE A CREW N
LONGER PRESIDENT AND HE UL'T
BE IMPEACHED.
HE ORDERED THE MILITARY TO STAGE
A COUP AND YOU ARE SAYING THAT'S
AN OFFICL T.
THAT'S IMMU.
>> I THINK IT WOULD DEPEND ON
THE CIRCUMSTANCES WHETHER IT WAS
AN OFFICIAL ACT.
>> WHAT DOES THAT MN DEPEND ON
THE CIRCUMANS? HE WAS THE PSIDENT, HE IS THE
COMMANDER-IN-CHIEF.
TALKS TO HIS GENERALS ALL THE
TIME AND HE TOLD THE GENERALS I
DON'T FEEL LIKE LEAVING OFFICE
AND I WANT TO STAGE A COUP.
IS THAT IMMUNE?
>> IF IT'S AN OFFICIAL ACT,
THERE NEEDS TO BE IEAMENT
AND CONVICTION BEFORE AND
BECAUSE THE FRAMERS KNEW THE
RISK.
>>S IN OFFICIAL ACTS?
IS IT AN OFFICIALCT?
>> THE WAY HE DESCRIBED THAT
HYPOTHETICAL, IT COULD WELL BE
BUT I JUST DON'T KNOW.
IT'S A CTPECIFIC CONTACTS.
>> THE ANSWER SOUNDS TO ME IT'S
AN OFFICIAL ACT BUT IT SOUNDS D.
>> IS CERTAINLY SOUNDS VERY BAD
THAT'S WHY THE FRAMERS HAVE A
WHOLE SERIES OF STRUCTURAL
CHECKS THAT HAVE SUCCESSFULLY
PREVENTED THAT VERY KIND OF
EXTREME HYPOTHETICAL.
THAT IS THE WISDOM OF THE
FRAMERS.
THERE IS A RISK THAT NEED TBE
GUARDED AGAINST WAS NOT THE
NOTION THEREDENT MIGHT
ESCAPE METAL PROSECUTION FOR
SOMETHING VERY UNLIKELY.
IS MUCH MORE LIKELY INSTRUCTED
TO THE PUBLIC, THE REST -- THE
RISK -- >> THE FRAMERS DID NOT PUT AN
IMMUNITY CLAUSE INTO THE
CONSTITUTION. THERE ONCE THERE WAS SOME
MUNITY CLAUSES AND STATE
CONSTITUTIONS BUT THEY DI'T
PROVIDE IMMUNITY TO THE
PRESIDENT.
NOT SO SURPRISING, THEY WERE
REACTING AGAIN A MONARCH WHO
CLAIMS TO BE ABOVE THE LAW.
WASN'T THE WHOLE POI TT THE
PRESIDENT WAS NOT A MONARCH ON
THE PRIDT WAS NOT SUPPOSED TO BE ABOVE THE LAW?
>> TY DID PUT IN IMMUNITY
CLAUSE, THE EXECUTIVE ACTION
CLOSE -- CLAUSE WHICH SET RT
IN BROAD LANGUAGE MARBURY
AGAINST MADISON.
THEY ALSO DISCUSSED AND CONSIDEREDHAWOULD BE THE
CHECKS ON THE PREDEY AND
THEY DID NOT SAY HE HAD CRIMINAL
PRECION AT THE
CONSTITUON CONVENTION.
NJAMIN FRANKLIN SAID THAT WAS
NOT THERE.
>> THANK.
>> JUSTICE GORSUCH?
>> RETURNING TO THE CHIEF
JUSTICE'S HYPOTHETICAL ABOUT THE
AMBASSADOR SALE IN BRIBERY.
CONGRESS HAS A STATUTE THAT
NAMES THE PRESIDENT AND SAYS HE
CAN BE CRIMINALLY PROSECUTED FOR
BRIBERY PRESUMABLY AFTER HE
LEAVES OFFICE.
OUTSIDE THE CORE ARE T JUSTICE KAVANAUGH WAS TALKING
ABOUT, WHEN CONGRESS SPEAKS
CLEARLY, COULDN'T A STATUTE LIKE
THAT, COULDN'T CONGRESS PROVIDE
A STATUTE LIKE THAT THAT WOULD
ALLOW WHOLE MANNER OF EVIDENCE
TO COME IN TO OVTHE CASE?
>> O POSITION IS THAT WOULD
HAVE TO BE IN ON OFFICIAL ACT,
PULYRIVATE CONDUCT FOR THE
PROSECUTION TO GOORWARD.
>> BUT OUTSIDE THE CORE AREAS OF
EXUTE POWER, IF THERE IS A
CLEAR STATEMENT FROM CONGRESS
THAT SOMETHING IS UNLAWFUL AND
IT APPLIES TO E PRESIDENTI'M
STRUGGLING TO SEE WHY IN THAT
CASE PERHAPS THE EVIDENCE COULD
COME IN. >> THE STRONGEST POSSIBLE CASES
WHAT YOU DESCRIBED DCRE AS THE CORE EXECUTIVE POWERS.
THE HOLDING -- THIS DOESN'T TURN
ON HOW CENTRAL AND LEGISLATIVE ACT IS.
IT'S AN UNOFFICIAL ACT WCH
APPLIES TO THE OUTER PERIMETER
OF THE FITZGERALD.
>> WHAT WOULD HAPPEN IF
PRESIDENTS WERE UNDER FEAR THAT
THEIR SUCCESSORS WOULD
CRIMINALLY PROSECUTE TM R THEIR ACTS IN OFFICE, WHETHER
THEY ARE ENGAGED IN DRONE
STRIKES, YOU KNOW ALL THE
HYPOTHETICALS. IT SEEMS LIKE ONE OF THE
INCENTIV TT MIGHT BE CREATED
IS FOR PRESIDENTS TO TRY TO
PARDON THEMSELVES.
DO YOUAVE ANY THOUGHTS ABOUT
THAT? >> I DIDN'T THINK ABOUT IT UNTIL
YOU ASKED IT.
THAT MIGHT BE CREATED. >> WE'VE NEVER ANSWERED WHETHER
A PRESIDENT CAN DO THAT.
HAPPILY, IT'S NEVER BEEN PRESENTED TO US.
>> IF THAT REMAINS IN PLACE,
THAT WILL LIKELY REMAIN THE
CASE.
IN FITZGERALD, IT EMPHASIZED THE
REAL CONCERN OF BEING BOLD AND
FEARLESS ACTION.
IS THE PRESIDENT GOING TO HAVE
TO MAKE A CONTROVERSIAL DISN
WHERE HIS POLITICAL OPPONENTS
WILL COME AFTER HIM THAT MINUTE
HE LEAVES OFFICE? WILL THAT DAMPEN THE ARDOR OF
THAT PRESIDENT TO DO IT R
CONSTITUTIONAL STRUCTURE DEMANDS
OF HIM OR HER WHICH IS BOLD AND
FEARLESS ACTION IN THE FACE OF
CONTROVERSY.
>> PERHAPS IF HE FEELS HE HAS
TO, HE WILL PARDON HIMSELF EVERY
FOUR YEARS NOW.
>> AS THE COURT POINTED OUT,
THAT WOULDN'T PROVIDE SECURITY
BECAUSE THE LEGALITY OF THAT IS
SOMETHING THAT'S NEVER BEEN
ADDRESSED. >> IN ADDITION TO IMPEACHMENT
AT YOUISSSED HIS
SUPPORTIVE LIABILITY.
YOU DON'T CONTEST THAT EVERYBODY
FOOWG AN UNLAWFUL ORDER CAN
BE IMMEDIATELY PROSECUTED, CAN
-- DO YOU?
IF THE PRESIDENT GIVES AN
UNLAWFUL OER, CALL IN THE
TROOPS IN THE EXAMPLES WE'VE
HEARD, EVERY SUBORDINATE FACES
CRIMINAL PROSECUTION, DON'T THEY
>> THAT IS WHAT IT WAS SAID AT
THE CONSTITUTIONAL CONVENTION.
TH WLD HAVE TO BE A STATUTE
THAT WOU CER FOR THEM TO BE
PROSECUTED.
WE'VE GOT LOTS OF STATUS.
E CRIMINAL LAW BOOKS ARE
REPLETE.
IS THAT ONE CHECK THAT'S
AVAILABLE?
>> IF THAT STATUTEAS DOING
WHAT MARBURY SAYS Y C'T DO
WHICH IS GOING AFTER THE
SUBORDINATES, THE FRANKLIN CLEAR
STATEMENT ROLE MIGHT BE EMPLOYED
AND YOU MIGHT NOT ABLE TO GO
AFTER THAT PRESIDENT.
I DON'T THK NGRESS SAYS WE
CAN GO AFTER THE PRESIDENT BUT
WE C CCK OUT THE PRESIDENT
TALK T CONGRESS AND WE WILL PUT
IN CRIMINAL STATUE THAT SAYS
IF YOU PROVIDE FALSE INFORMATION
TO CONGRESS, IN CARRYING OUT THE
PRESENT RECOGNITIO POWERS, YOU
CAN BE PROSECUTED.
THAT WOULD BE A DIFFICULT
QUESTION. THE FUNDAMENTAL POINT OF DRAWING
AT DISTITI IS AN EXCELLENT
DISTINCTION.
TO FOLLOW UP ON THE OLC
OPINION QUESTION, THEY
ARTICULATE A CLEAR STATEMENT
RULE AS TO THIS COURT'S CASE FOR
COVERING OFFICIAL ACTS.
NONE OF THE STATUTES CITED HERE
HAVE A CLEAR STATEMENT COVERING
THE PRESIDENT, THEREFORE MEANING
THE PRIDT CANNOT BE CHARGED
FOR ANY OFFICIAL ACTS UNDER THE
STATUTES.
>> THAT'S ABSOLUTELY CORRECT.
>> TH'S SEPARATE FROM WHAT'S
FIAL VERSUS WHAT'S PERSONAL.
FOR THE BUCKET THAT IS OFFICIAL,
THERE IS NO CLEAR STATEMENT
PERIOD?
>> AS TO PRIVATE CONDUCT, WE
DON'T THINK THE CLEAR STATEMENT
RULE WOULD BE INVOKED.
THESE STATUTES IN THE IIT--
IN THE INDICTMENT ARE FAR AFIELD
TO CRIMINALIZE IN CLEAR TERMS
THE PRESE'S OFFICIAL ACTS. >> JUST TO CLARIFY THIS, THE
PRESIDENTS NOT ABO T LAW AND
THE PRESIDENT IS NOT A KING AND
THE FOUNDERS THOUGHT THAT.
IN RESPOE THAT, T
PRESIDENT IS SUBJECT TO
PROSECIOFOR ALL PERSONAL
ACTS JUST LIKE EVERY OTHER
AMERICAN.
THE QUESTION IS ASKED TAKEN IN
HER OFFICIAL CAPACITY. >> THERE WOULD BE A WHOLE SERIES
OF STRUCTURAL CHANGES IN
ADDITI TTHAT WISH TO TERROR
AND HAS DERD PERFECT
PRESIDENTI MH MALFEASANCE FOR 200 YEARS.
>> ON THE SOURCE OF IMMUNITY, DO
NOT EXPLIT CONSTITUTION BUT
EXECUTIVE PRIVILEGE IS NOT
EXPLICIT IN THE CONSTITUTION YET
IN UNITED STATES VERSUS NIXON,
THE COURT UNANIMOUSLY SAID THE
ARTICLE TO EXECUTIVE POWER IN THE CONSTITUTION ENCOMPASSED
EXECUTIVERILEGE IN THE SAME
PRINPLPRESUMABLY WOULD APPLY
TO EXECUTIVE IMMUNITY BEING THE
COMPASS WHICH IN -- WITHITH
EXECUTIVE POWERS. >> THAT'S COECAND THERE'S A
TELLING PASSAGE WHERE THIS UR
TALKED ABOUT THERE IS A LETTER
FROM JAMES MADISON TO THOMAS
JEFFERN THE TIME OF THE
FOUNDING WHERE MADISON SAID TY
DID NOT EXPRESSLY TAKE AWAY REMOVAL POWER.
IF THE ORIGINAL UNDERSTANDING IS
THAT T CUSE BROAD ENOUGH, IT
HAS TO BE TAKEN AWAY WHICH IS THE OPPOSITE OF RESUMPTION THEY
ARE ADVANCING HERE.
>> LASTLY, I THINK YOU'VE
ACKNOWLEDGED IN RESPONSE T
OTHER QUESTIONS THAT SOME OF THE
ACTS IN THE IICTMENT ARE
PRIVATE IN YOUR VIEW IS THAT
SOME ARE OFFICIAL.
IS IT YOUR POSITION THAT THAT AN
ANALYSIS OF WHICH SHOULD BE
UNDERTAKEN IN THE FIRST INSTANCE
BY THE D.C. CIRCUIT JUDGE THE
DISTRI CRT?
>> MOST LIKELY A DISTRICT COURT
UNDER THE LOGIC OF ANDERSON. >> THANK YOU.
>> YOU'VE ARGUED THAT THE
IMPEACHMENT CLAUSE SUGGESTS OR
ACQUIRES IMPEACHMENT TO BE A
GATEWAY TO CRIMINAL PROSECUTION, RIGHT?
>> I THINK THAT'THE PLAIN
MEANING OF THE SECOND PHSEN
THE CLAUSE. >> THERE AY OTHER PEOPLE
WHO AREUBCT TO IMPEACHMENT
INCLUDE NINE SITTING ON
THIS BENCH.
DON'T THINK ANYONE HAS EVER
SUGGESTED THAT IMPEACHMENT WOULD
HAVE TO BE THE GATEWAY TO
CRIMINAL PROSECUTION F ANY OF
THE MANY OTHER OFFICERS SUBJECT
TO IMPEACHMENT. WHY IS THE PRESIDENT DIFFERENT
WHEN THE IMPEACHMENT CLAUSE
DOESN'T SAY SO? >> SOMEONE HOW IMPORTANT HAS
MADE THE OPPOSITE SUGGESTION.
THE SOLICITOGERAL BORG
REVIEWED THE HISTORICAL MATERIALS OF THE SEQUENCE IS
MANDATORY ONLY AS TO THE ESENT.
THAT IS THE DOJ VIEW OF THE
PEHMENT JUDGMENT CLAUSE
WHICH IS EXACTLY OUR POSITION.
THE SEQUENCE IS MANDATORY ONLY
FOR THE PRESIDENT.
THIS CONTRADICTS THE PLAIN
LANGUAGE OF THE CSTUTION AND
100 YEARS OF HISTORY.
DOJ ADMITS THE FRAMERS INTENT.
WE THINK THAT PRACTICE SHOULD
NOT BE EXTENDED IN THIS CONTEXT.
>> WHAT IF CRIMINAL INTENT IS
NOT DISCOVERED UNTIL AFTER
PRESIDENT ISUTF OFFICE? >> THE FRARS ASSUMED THE RISK
OF UNDER ENFORCEMENT BY
CONSTRUCTING THESE CHECKS.
THIS WAY WE DO NOT LOSE BEY.
>>HE SPECIAL COUNSEL MAKES A
POT WHICH IS PRETTY
COMPELLING.
YOU ADMIT THAT IF THE PRESIDENT
WERE SUCCESSFULLY IN PEACE, HE
COULD BE TERMINAL -- CRIMINALLY
PROSECUTED AFTER IMPEACHMENT? >> ASSUMING THE PROSECUTION WAS
CENTERING ON THE TIME OF TH
OFFENSES. >> GRANTED.
YOU ALSO SAY THESE CRIMINAL
ATUTES EXPLICITLY MENTION THE
PRESIDENT BUT DON'T APPLY TO
M.
HOW CAN YOU SAY HE WOULD BE
IMPEACHMENT WHILE AT THE SAME
TIME SAYING HE IS EXEMPT FROM
THESE CRIMINAL STATE
>> THE A STATUTES
>> TWO OTHE.
>> THEY HAVEN'T DONE A
COMPREHENSIVE REVIEW.
UNDER FRANKLIN, IT'S NOT A MAGIC
WORD REQUIRENT MORE FUNDAMENTALLY, THEY CAN SEE
THERE ARSTUTES THAT EXIST.
MUCHCHMENT CAN OCCUR AS A
RESULT OF PRIVATE CONDUCT.
THE JUDGMENT CLAUSE, IT DOES
SIGNIFICANT WORK BY AUTHORIZING
THE SUBSEQUENT PROSECUTION OF A
PRESIDENT.
WHAT THE FRAMERS WERE DISCUSSING
IN THE CONVENTION S NCERNS
ABOUT PRIVATE CONDUCT.
>> PICK JTICE KAGAN'S
EXPLOF A PRESIDENT WHO
ORDERS A COUP, LET'S IMAGINE HE
IS IED AND CONVICTED FOR
ORDERING THAT COUP AND LET'S
ACCEPT FOR THE SAKE OF ARGUMENT YOUR POSITION THAT THAT WAS
OFFICIAL CONDUCT.
YOU ARE SAYING HE COULD BE
POSITIVE FOR THAT EVEN AFTER
CONVICTION AND IMPEACHMENT
PROCEEDINGS? IF THERE IS NOT A STATUTE THAT
EXPRESSLY REFENC THE
PRESIDENT AND ME CRIMINAL
FOR THE PRESIDENT? >> TREOULD HAVE TO BE A
STATUTE THAT MADE A CLEAR
STEMENT THAT CONGRESS HAS TO
REGULATE THE PRESIDENT'S
CONDUCT. >> THANK YOU.
>> JUSTICE JACKSON?
>> I NOW UNDERANBETTER YOUR
POSITION IN YOUR DISCUSSNS
WITH JUSTICE KAVANAUGH.
BAME CLEAR YOU ARE SAYING
THAT FOR TVATE ACTS OF A
ESIDENT, THERE IS NO IMMUNITY
BUT FOR THE OFFICIAL ACTS OF THE
PRESIDENT THERE IS IMMUNITY.
IS THAT YOUR POSITION?
>> I AGREE WITH THAT.
>> ONE THIT OCCURS TO ME
IS THAT THIS SORT OF DIFCU
LINE DRAWING PROBLEM WE ARE
HAVING WITH THESEYPHETICALS
IS IT A PRIVATE ACTOR REPUBLIC ACT?
IT'S BEING THIS ACETA IT BY
THAT ASSUMPTION.
IF OFFICIAL ACTS DID T GET
ABSOLUTE IMMUNITY, IT WOULDN'T
MATTER, WE WOULDN'T HAVE TO
IDTI WHICH ARE PRIVATE AND WHICH ARE PUBLIC, CORRECT?
>> THAT IS THE APPROACH OF THE
D.C. CIRCUIT JUDGE>O THE
EXTENT WERE WORRIED ABOUT HOW
FIGURE OUT WHETHER IT'S PRIVATE
OR PUBLIC ON THE WE HAVE TO
UNDERSTAND WE ARE ONLY DOING
THAT BECAUSE OF AN UNDERLYING
ASSUMPTION THAT THE PUBLIC ACTS
GET IMMUNITY.
LET ME EXPLORE THAT ASSUMPTION.
WHY IS IT AS A MATTER OF THEORY
THAT THE PRESIDENT WOULD NOT BE
REQUIRED TO FOLLOW THE LAW WHEN
HE IS PERFORMING HIS OFFICIAL
ACTS?
EVERYONE ELSE, THERE AREOF
FOLKS WHO HAD VERY HIGH-POWERED
JOBS TO MAKE A LOT OF
NSEQUENTIAL DECISIONS AND THEY
DO SO AGAINST A BACKDROP OF
POTENTIAL CRIMINAL PROSECUTION
IF THEY SHOULD BREAK THE LAW IN
THAT CAPACITY.
WE UNDERSTAND AND WE KNOW THAT
THE VISION OTHUNITED STATES
HAS THE BEST LAWYERS IN THE
WO
WHEN HE IS MAKING A DECISION, HE
N CONSULT WITH PRETTY MUC
ANYBODY AS TO WHETHER OR NOT
THIS THING IS CRIMINNOT.
WHY WOULD WE HE SITUATION IN
WHICH WE WOULD SAY THAT THE
PRESIDENT OU BE MAKING
OFFICIAL ACTS WITHOUT ANY
RESPONSIBILITY FOR FOLLOWING THE
LA >> I RESPECTFULLY DISAGREE WITH
THAT CHARACTERIZATION.
THE PRESIDENT IS ABSUTY
REQUIRED TO FOLLOW THE LAW IN
HIS FIAL ACTS BUT THE REME
FOR THAT -- COULD HE BE SUBJECT
FOR PERSONAL VULNEBITY AND
BEING SENT TO PRIS FOR A BAD
DECISION HE MADE IN OFFICE?
>> OTHEREOPLE WHO HAVE
CONSEQUENTIAL JOBS AND ARE
REQUIRED TO FOLLOW T LAW MAKE
THOSE DETERMINATIONS AGAINST THE
BACKDROP OF THAT SAME KIND OF
RISK.
WHAT IS IT ABO T PRESIDENT?
I'VE HEARD YOU SAY IT'S BECAUSE
E ESIDENT HAS TO BE ABLE TO ACT BOLDLY ANDAK
CONSEQUENTIAL DECISIONS.
SURE, BUT THERE ARE LOTS OF
PEOPLE MAKE LIFE AND DEATH
DECISIONS BUT IF THEY DON'T,
THEY COULD BE SENT TO IS.
>> FROM FITZGERALD, THAT IS THE
INFERENCEASONING THIS COURT REJECTED.
>> FITERD WAS A CIVIL
SITUATION IN WCHHEREDENT
ACTUALLY WAS IN A DIFFERENT
POSITION THAN OTHER PEOPLE.
BECAUSE OF THE NATURE OF HIS
JOB, THE HIGH-PROFILE NATURE AND
THE FACT THAT HE TOUCHES SO MANY
WHEN YOU TALK ABOUT PRIVATE
CIVIL LIABILITY, ANYDYIM
STREET CAN S H AND WE CAN
SEE THAT THE PRESENT WAS SORT OF
DIFFERENT THAN THE ORDINARY
PERSON IF YOU SAY HE SHOULD BE
IMMUNE FROM CIL ABILITY.
WHEN WE ARE TALKING OF CRIMINAL
HOW THE PRESIDENT STANDS IN ANY
DIFFERENT POSITION WITH RESPECT
TO THE NEED TO FOLLOW THE LAW IN
DOING HIS JOB THAN ANYONE ELS
>> HE IS REQUIRED TO FOLLOWHE
LAW. >> BUT HE'S NOT IF THERE IS NO
THREAT OF CRIMINAL PROSECUTION.
WHAT PREVENTS THE PRESIDENT FROM
DOING WHATEVER HE WANTS?
>> ALL THE STRUCTURAL CHECKS
IDENFI IN FITZGERALD.
WHO >> I'M NOT SURE THAT'S MUCH
OF A BACKSTOP.
I GUESS WHAT I'M MORE W
ABOUT IS YOU SEEM TO WORRY -- BE
WORRIEDBOUT THE PRESIDENT
BEING CHILL.
I THINK WE WOULDAVE A
SIGNIFICANT OPPOSITE PROBLEM WITH THE PRESIDENT WASN'T -- THE
MOST POWERFUL PERSON IN THE
WORLD WITH T GREATEST AMOUNT
OF AUTHORITY IF HE COULD GO INTO
KNOWING TT ERE WOULD BE NO POTENTIAL PENAL F
COMMITTING CRIMES, I'M TRYING TO
RSTAND WHAT THE DISINCENTIVE
IS FROM TURNING THE OVAL OFFICE
INTO THE SEAT OF CRIMINA
ACTIVITY IN THIS COUNTRY.
>> I DON'T KNOW IF THERE IS ANY
ALLEGATION OF THIS CASE.
BENJAMIN FRANKLIN SAID 'VE USE
THE PROSECUTIOABT CHIEF
EXUTIVE THAT EVERYONE CRIED
OUT ON AND GEORGE WASHINGTON
SAID WE ARE WORRIED ABOUT
FACTUAFE. >> LET ME PUT THIS WORRY ON THE
TABLE -- AT THE POTENTIAL FOR
CRIMINAL LIABILITY IS TAKEN OFF
THE TABLE, WOULDN'T THERE BE A SIGNIFICANT RISK THAT FUR
PRESIDENTS WOULD BE EMBOLDENE
TO COMMIT CRIMESIT ABANDON
WHILE THEYN OFFICE?
RIT NOW, THE FACT THAT WE ARE
HAVING THIS DEBATE BECAUSE
PRESIDENTS MIGHT BE PROSECUTED,
PRESIDENTS FROM THE BEGINNING OF
TIME OF UNDERSTOOD THAT'S A
POSSIBILIT
THAT MIGHT BE WHAT HAS KEPT THIS
OFFICE FROM TUININTO THE
KIND OF CRIME CTEI'M
ENVISIONING. ONCE WE SAY NO CRIMINAL
LIABILITY, MR. PRESIDENT. N DO WHATEVER YOU WANT.
I'M WORRIED WE WOULD HAVE A
WORSE PROBLEM THAN THE PROBLEM
OF THE PRESENT FEELING
CONSTRAINETOOLLOW THE LAW WHILE HE'S IN OFFICE.
>> I RESPECTFULLY DISAGREE WITH
THAT.
THIS IS THE REGIME WE'VE
OPERATED ON UNDER 234 YEARS.
>> LET ME ASK YOU ANOTHER
ESTION.
LET ME ASK ABOUT THE CLEAR
STATEMENT LINE OF QUESTIONING.
I DIDN'T SEE YOU ARGUE THAT
LO
I UNDERSTAND YOU HAVE THAT IN
YO BRIEFS BUT DID YOU ARGUE
BEFORE THE D.C. CIRCUIT JUDGE
ABOUT A CLEAR STATEMENTIT
RESPECT TO STATUTES? >> YESINUR SEPARATELY FILED
MOTION.
>> THAT'S NOT THE QUESTION IN
THIS CASE. THE QUESTION IN THIS CASE COMES
OUT YR MOTION FOR IMMUNITY.
TO BRING IN AN ARGUMENT THAT YOU
DIDN'T RAISE BELOW, IT SEEMS YOU
FORFEIT.
>> I BELIEVE IT'S FAIRLY
CLED WITHIN THE QUESTION
PRESENTED. >> WHY?
>> THE COURT EXPANDED THE
QUESTION. >> BUT NOT A DIFFERENT STATUTORY
COMPLICATION OR DETERMATN?
THAT GOES TO CONSTITUTIONAL
AVOIDANCE, STATUTORY
INTERPRETATION IN U.S. FOR
IMMUNITY WHICH IS A DIERT THING.
>> I THINK IT'S RY CLOSE
LOGICALLY.
TO WHAT EXTENT DOES IT EXIST IN
THE ARGUMENT IS IMMUNITY EXISTS
TO THE EXTENT THAT IT GRAZES A
GREAT -- IT RAISES A GREAT
>> THAT'S TAY CIRCULAR..
YOU USED TT ARGUMENT TO AVOID
CONSTITUTIUESTIONS.
YOU ARE ASKING US A
CONSTITUTIONAL QUESTION HERE SO
IT DOESN'T EVENAK SENSE TO
TALK AUTLEAR STATEMENTS AND
OVERRULE RULE THE WAVECO UP
IN THE CONTEXT OF AN IMMUNITY
QUESTION.
LET ME ASK YOU THIS --
ONE MORTION --
WHAT IS THE ARGUMENT WITHHE
PRESIDENT OF UNITED STATES WHO
YOU SAY IS BOUND BY LAW IS NOT
UNNOTICED THAT HE HAS TO DO HIS
JOCOISTENT WITH THE LAW?
TO THE EXTENT THE CLEAR
STATEMENT RULE COMES IN, IT'S
ABOUT THE PERSON NOT BEING ON
NOTICE
I DON'T UNDERSTAND WHY CONGRESS
IN EVERYRINAL STATUTE WOULD
HAVE TO S AND THE PRESIDENT IS
CLUDED.
THOUGHT THAT WAS THE
BAGROUND UNDERSTANDING THAT
THEY ARE ENACTING A GENERALLY
APPLICABLE CRIMINAL STANDARD
WHICH APPLIES TO THE PRESIDENT
LIKE EVERYONE ELSE.
WHAT IS THE CLEASTEMENT THAT
WOULD BE MADE IN THIS CONTEXT?
>> UNDER FRANKLIN, CONGRESS HAS
TO SPEAK CAR BEFORE IT
INTERFERES WITH THE PRESIDENT'S
WERS.
WE HE AN INDICTMENT HERE THAT
SEEKS TO CRIMINALIZE OBJECTIVE
CONTEXT THAT FALLS WITHIN THE
HEARTLAND OF CORE EXECUTIVE AUTHORITY.
>> THANK YOU.
>> THANK YOU, COUNSEL.
>> MR. DREEBEN? MAID PLEA THE
COURT, THIS COURT HAS NEVER
REGNED ABSOLUTE CRIMINAL
IMNITY FOR ANY PUBLIC
OFFICIAL.
PETITIONER CLAIMS THAT A FORMER
PRESIDENT HAS PROMINENT CRIMINAL
IMMUNITY FOR ITS OFFICIAL ACT
UNLESS HE WAS FIRST IMPEACH
AND CONVICTED.
HIS NOVEL THEORY WOULD IMMUNIZE
FOER PRESIDENT'S FOR CRIMINAL
LIAB FOR BRIBERY, TREASON,
SEDITION, MURDER
SUCH PRESIDENTIAL IMMUNITY HAS
NO FOUNDATION IN THE
CONSTITUTIONAL CONSTRUCTION.
THE FRKNEW ALL TOO WELL
THE DANGS A KG WHO COULD
DO NO WRONG.
THEY DEVISED AYSTEM.
HERE THE EXECUTIVERAH IS
ENFORCING CONGRESSIONAL STATUTES
AND SEEKING ACCOUNTABITFOR
PETITIONERS' ALLEGED MISUSE OF
OFFICIAL POWER TO SUBVERT
DEMOAC
THAT IS A COMPELLING PUBLIC
INTEREST.
IN RESPONSE, PETITIONER RAISES
CONCERNS ABOENTIAL ABUSES.
ESTABLHELEGAL SAFEGUARDS PROVIDE LAYERS OF PROTECTIONS
WITH THELE THREE CRTS
PROVIDING THE ULTIMATE CHECK.
THE EXISTING SYSTEM IS A
REFULLY BALANCED FRAMEWORK.
IT PROTECTS THE PRESIDENT, BUT
NOT AT THE HIGH CONSTITUTIONAL
COST OF BLANKET CRIMINAL
IMMUNITY.
THAT HAS BEEN THE UNDERSTANDG
OF EVERY PSIDENT FROM THE
FRAMING THROUGH WATERGATE AND UP
TO TODAY.
THIS COURT SHOULD PRESERVE IT.
I WELCOME THE COURT'S ONS.
>> DOES THE PRESIDENT HAVE
IMMUNITY OR ARE YOU SAYING THAT
THERE IS NO PRESIDENTIAL
MUNITY EVEN FOR OFFICIAL ACT
>> YES, JUSTICE THOMAS, BUT IT
IS IMPORTANT TO PUIN
PERSPECTIVE THE POSITION THAT WE
ARE OFFERI COURT TODAY.
THE PRE AS THE HEAD OF THE
ARCLTO BNC CAN ASSERT AS
APPLIED ARTICLE TWO OBJECTIONS
TO CRIMINAL LAWS THAT INTERFERE
WITH AN EXCLUSE WER
POSSESSED BY THE PRESIDENT OR
THAT PREVENT THE PRESIDE FM
ACCOMPLISHING H CSTITUTIONAL
HE ASSIGNED FUNCTIONS.
AT IS THE CONSTITUTIONAL
DOCTRINE THAT CURRENTLY GOVERNS
THE SEPARATION OF POWERS.
WHAT PETITIONER IS ASKING FOR IS
A BROAD, BLANKET IMMUNITY THAT
WOULD PROTECT THE PRESIDENT, A
FORMER PRESI FROM ANY
CRIMINAL EOSE ABSENT
IMPEACHMENT AND CONVICTION,
WHICH HAS NEVER HAPPENED IN OUR
HISTORY, AND WE SUBMIT THAT IS
NOT NECESSARY IN ORDER TOE
THAT THE PRESIDENT CAN PERFORM
ALL OF THE IMPORTANT TASKS THAT
THE CONSTITUTION REPOSES IN HIM.
>> IN NOSOISTANT PAST,
CERTAIN PRESIDENTS HAVE ENGAGED
VARIOUS ACTIVITIE,
OPERATIONS, LIKE OPERATION
NGSE WHEN I WAS A TEENAGER,
AND YET THERE WERE NO PROSECUTIONS.
WHY?
IF WHAT YOU ARE SAYING IS RIGHT,
IF IT SEEMS THAT THAT WOULD HAVE BEEN RIGHT FOR CRIMINA
PROSECUTION.
>> JUSTICE THOMAS, I THINK THIS IS A CENTRAL QUE
THE REASON WHY THERE HAVE NOT
BEEN PRIOR CRIMINAL PROSECUTIONS
ISHAT THERE WERE NOT CRIMES.
I WANT TO EXPLAIN WHY THERE ARE
LAYERS OF SAFEGUARDS THAT ASSURE
THAT FORMER PRESIDTSO NOT
HAVE TO LIGHTLY ASSUME CRIMINA
LIABILITY FOR ANY OF THEIR
OFFICIAL ACTS.
ATHE OUTSET, THERE IS A
STATUTORY CONSTRUCTIONRINCIPLE
THAT IS APPLICABLE HERE.
IT ARISES WHEN THERE IS A
SERIOUS CONSTITUTIONAL QUESTION
ABOUT APPLYING A CRIMINAL ATE TO THE PREDE'S ACT.
IT IS NOT AND I'M SURE WE WILL
DISCUSS TS THAT NO STATUTE CAN
APPLY TO THE PRESIDENT IN HIS
OFFICIAL CAPACITY ABSENT A
DESIGNATION OF THE PRESIDENT IN
IT. BUT THERE IS A PRINCIPLE THAT IF
THERE IS A SERIOUS
CONSTITUTIONAL QUESTION, COURTS
WILL STRIVE TO CONSTRUE THE
THE PRESIDENT.DOES NOT APPLY TO
IN ADDITION TOT, THE
PRESIDENT I THINK HAS BEEN
NTIONED EARLIER HAS ACCESS TO
ADVICE FROM THE ATTORNEY GENERAL
AND IT WOULD BE A DUE PROCESS
PROBLEM TO PROSECU A PRESINT
TO RECEIVES ADVICE FROM THE
ATTORNEY GENERAL THAT HIS
ACTIONS WERE LAWFUL ABSENT THE
KIND OF CLUSION OR CONSPIRACY
THAT IS SELF REPRESENTED A
CRIMINAL VIOLATION, WHICH I
DON'T REALLY SEE AS BEING A
REALISTIC OPTION.
AND IF I COULD SAY ONE MORE
THING BECAUSE YOU RAISED THE
QUESTION ABOUT POTTI
OVERSEAS TAKING OF LIFE AND THE
OFFICE OF LEGAL COUNSEL HAS
DRSED THIS QUITE SPECIFICALLY.
THERE IS A BACKGROD INCIPLE OF CRIMINAL LAW CALLED THE
PUBLIC AUTHORITY EXCEPTION T
LIABILITY AND IT IS READ INTO
FEDERAL L UNLESS CONGRESS
TAKES SPECIFIC ACTION TO OUSTED,
WHICH IT NEVER HAS DONES R
AS I AM AWARE, AND IN A CA IN
WHICH THE PRESIDENT SOUG
ENGAGEN OVERSEAS ACTIVITY THAT
WOD RESULT IN THE TAKING OF
FE IT DID NOT SAY THE FEDERAL
MURDER STATUTE DOESN'T
THAT WOULD BE THE CRUX OF MY
FRIEND'S ARGUMENT.
INSTEAD, OLC WENT THROUGH AN TEIVE ANALYSIS ON WHYHE
PUBLIC AUTHORITY DEFENSEOULD
PREVENTED FROM BEING CONSIDERED
A VIOLATION OF LAW TO GO AFTER A
TERRORIST FOR EXAMPLE.
>> THE COURT OF APPEALS BELOW IN
THE DECISION WREVIING
SAID "A FORMER PRESIDENT CAN BE
PROSECUTED FOR HIS OFFICIAL ACTS
BECAUSE THE FACT OF THE
PRECUTION MEANS THAT THE
FORMER PRESIDENT HAS ALLEGEDLY
ACTED IN DEFIANCE OF THE LAWS."
DO YOU AGREE WAT STATEMENT?
>> I THI ISOUNDS TALL
LOGICALLY TRUE, B IANT TO
UNDERSCORE THAT THE OBLIGATION
OF ARESIDENT IS TO TAKE CARE
THAT THE LAWS ARE FAITHFUL
EXECUTED.
>> I THINK IT SOUNDS TA
ILLOGICALLY TRUE WELL.
AS I READ IT, IT SAYS SIMPLY A
FORMER PRESIDENT CAN BE
PROSECUTED BECAUSE HE IS BEING PROSECUT.
>> I WOULD NOT SUGGEST THAT THAT
IS EITHER E OPER APPROACH IN THIS CASE WERE CERTAINLY NOT THE
GORNNT'S APPROACH.
AROSECUTION DOES OF COURSE
INVOKE FEDERAL CRIMINAL LAW.
THE ALLEGATIONS HAVE TO BE
PRESENTED TO A GRAND JURY.
>> SHORTLY AFTER THAT STATEMENT
IN THE COU, THAT IS WHAT THEY
SAID, BUT THERE IS NO REASON TO
WORRY BECAUSE THE PROSECUTOR
WILL ACT IN GOOD FAITH AND THERE
IS NO REASON TO WORRY BECAUSE
THE GRAND JURY WILL HAVE
RETURNED THE INDICEN
YOU KNOW HOW EASY IT IS IN MANY
CASES FOR A PROSECUTOR TO GET A
GRAND JURY TO BRING IN
INDICTMENT AND RELIANCE ON THE
GOOD FAITH OF THE PROSECUTOR MAY
NOT BE ENOUGH IN SOME CASES.
'M NOT SUGGESTING HERE.
IF THOSE ARE THENL
PROTECTIONS AND IT IS
TOPOLOGICAL AND THAT ISO
LONGER YOUR POSITION, YOU ARE
T FENDING THAT PITION, WHY
SHOULDN'T SEND IT BACK TO THE
COURT OF APPEALS OR ISSUE AN
OPINION MAKING CLEAR THAT THAT IS THE LAW?
>> I AM DEFENDING E URT OF APPEALS JUDGMENT AND I DO THINK
THERE ARE LAYERED SAFEGUARDS THE
COURT CAN TAK ACCOUNT THAT
WILL AMELIORATE CONCERNS ABOUT
UNDULY CHILLING PRESIDENTIAL
CONDUCT. TH CCERNS US.
WE ARE NOT ENDORSING A REGIME
ATE THINK WOULD EXPOSE
FORMER PRESIDENTSO CRIMINAL
PROSECUTIONS IN BAD FAITH, FOR
POLITICAL ANIMUS, WITHOUT
ADEQUATE EVIDENCE.
A POLITICALLY DRENROSECUTION
WOULD VIOLATE THE CONSTITUTION
UNDERWEIGHT VERSUS UNITED STATES.
IT IS T METHING WITHIN THE
ARSENAL OF PROSECUTORS TO DO.
PROSECUTORS TAKE AN OH,HE
ATTORNEY GENERAL TAKES AN OATH.
I DON'T WANT TO OVERSTATE YOUR
HONOR'S CONCERN WITH POTENTIALLY
RELYING FULLY ON GOOD FAITH, BUT
THAT IS AN INGREDI
AND THENHE COURTS STAND READY
TO AATE MOTNS BASED ON
SELECTIVE PROSECUTION, POLITICAL
.
THIS COURT RELIED ON THOSE VERY
PROTECTIONS IN A CASE JUST TWO
YEARS AGO.
WHAT CONCERNS ME IS THCOT
OF APPEALS DID NOT GET INTO A
FOCUSED CONSIDERATION OF WHAT
ACTS WE ARE TALKINGBO OR
WHAT DOCUMENTS WE ARE TALKING
ABOUT BECAUSE OF ITS ADOPTION OF
WH Y TERMED AND I AGREED
RIGHT CORRECTLY IS A
TAOLICAL STATEMENT.
BECAUSE THE FACTOR PROSECUTION
WAS ENOUGH TO TAKE AWAY ANY
OFFICIAL IMMUNITY, THE FACTOR
PROSECUTION, THEY HAD NO NEED TO
LOOK AT WHAT COURTS NORMALLY
PRIVILEGE OR IMMUNITY QUESTION.
>> I THINK I WOULD TAKE ISSUE
MR. CHIEF JUSTICE WITH THE IDEA
OF TAKING AWAY IMMUNITY.
THERE IS NO IMMITTHAT IS IN
THE CONSTITUTION UNLESS THIS
COURT CREATES IT TODAY.
THERE IS NO TEXTUALUNITY.
WE DO NOT SUBMIT THAT IS THE END
THE UNITED STATES VERSUS NIXON
WAS NOT A TEXTUALLY BASED CASE
NEITHER WAS NIXON VERSUS
FITZGERALD.
WE ENDORSED BOTH OF THOSE
HOLDINGS.
WHATS PORTANT IS THAT N
PUBLIC OFFICIAL HAS HAD AB
CRIMINAL IMMUNITY THAT MY FRIEND
SPEAKS OF, EVEN WITH RESPECT TO
THE SPEECH OR DEBATE CLAUSE.
IT IS NARROW AND IS FOCUSED ON
LEGISLATIVE ACTS, IT IS NOT
FOCUSED ON EVERYTHING A CONGRESSMAN DOES, AND IT
RESPONDS TO A SPECIFIC
HISTORAL CIRCUMSTANCE THAT
INVOLVED THE TWO OTHER BRANCHES
POTENTLLHARASSING
GISLATORS AND PREVENTING THEM
FR DOING THEIR JOBS.
THAT IS WHY IT ENDED UP IN THE
CONSTITUTION.
NOTHING LIKE THAT ENDED UP IN
PRESIDENT ANTH IS BECAUSE
ONE OF THE CHICERNS OF THE
FRAMERWATHE RISK OF
PRESIDENTIAL MISCONDUCT.
THEY LABORED OVER THIS.
EY ADOPTED AN IMPEACHMENT
STRUCTURE THAT SEPARATED REMOVAL
FROM OFFICE AS A POLITICAL
REMEDY FROM CRIMINAL
PROSECUTION.
THIS DEPARTEFR THE BRITISH
MODEL.
THE BRITH DEL WAS YOU GET
IMPEACHED AND CRIMINALLY
PROSECUT A CONVICTED IN THE SAME PROCEEDING.
AMERS DID NOT WANT THAT.
THEY WANTED AOLITICAL REMEDY
IN CASE A PRESIDENT WAS ENGI IN CONDUCT THAT ENDANGERED THE
NATION.
HE COULD BE REMOVED.
HE CAN'T BE PROSECUTED AS A
SITTING PRESIDENT.
THAT HAS BEEN A LONG-STANDING
E DERTMENT POSITION. >> YOU DISPUTE PROPOSITIONS THAT
A FORMER PRESIDENT HAS SOME RM
OF IMMUNITY, BUT AS I UNDERSTAND
YOUR ARGUMENT, YOU DO RECOGNIZE
THAT A FORMER PRESIDENT HAS A
FORM OF SPECIAL PROTECTION,
NAMELY THAT STATESHAT ARE
ALKALINE -- PLABLE TO
EVERYBODY MUST BE INTERPRETED
DIFFERENTLY UNDER SOME
CIRCSTCES WHEN APPLIED TO A
FORMER PRESIDENT.
ISN'T THAT TRUE? >> IT IS TRUE BECAUSE OF THE
GENERAL PRINCIPLE THAT COURTS
CONSTRUE STATUTES TO AVOID
SERIOUS CONSTITUTIONAL QUESTIONS
AND THAT HAS BEEN THE LONG-STANDING PRACTICE OF THE
OFFICE OF LEL COUNSEL.
>> ALL RIG, THIS IS MORE THAN
JU A QUARREL ABOUTERMINOLOGY
.
WHETHER IT IS IMMUNITY OR
SPECIAL PROTECTION BECAE
INVOLVES THIS DIFFERENCE WHICH YO ARE WELL AWARE OF.
IF IT IS JUST A FORM OF SPECIAL
PRECON, IN OTHER WORDS
STUT WILL BE INTERPRETED
DIERENTLY, THEN THAT IS
SOMETHING THAT HAS TO BE
LITIGATED AT TRIAL.
THE FORMER PRESIDENT CAN MAKE A
MOTION TO DISMISS AND MAY CITE
OPINIONSNDHE DISTRICT COURT
SAY, THAT'S FINE, I'M NOT BOUND
BY OLC AND I INTERPRET IT
DIFFERENTLY,O LET'S GO TO
TRIAL.
AND THERE HAS TO BE A TRIAL AND
THAT MAY INVOLVE GREAT EXPENSE
AND IT MAY TAKE UP A LOT OF TIME
AND DURING THE TRIAL THE FORMER
PRIDT MAY BE UNABLE TO
GA IN OTHER ACTIVITIES.
THEN THE OUTCOME IS DEPENDENT ON
THE JURY, T ITRUCTIONS TO
THE JURY AND HOW THE JY
RETURNS A VERDICT.
SO THE PROTECTION IS GREATLY
DILUTED IF YOU -- IF IT TAKES
THE FORM THAT YOU HAVE PROPOSED.
WHY IS THAT BETTER?
>> IT IS BETTER BEUSIT IS
MORE BALANCED.
THE BLANT MUNITY THAT PETITIONER IS ARGUING FOR JT
MEANS THAT A CRIMINAL PRECUTION IS OFF THE TLE
UNLESS HE SAYS THAT IMPEACHMENT
AND CONVICTION HAVE OCCURRED.
THOSE ARE POLEMICAL -- POLITICAL
REMEDIES THAT ARE EXTREMELY
DIFFULTO ACHIEVE IN A CASE
WHERE MISCONDUCT OCCURS CLOSE TO
THE END OF A PRESIDENT'S TERM.
CORE IS UNLIKELY TO CRANK UP
THE MACHINERY TO DO IT.
THE IMPEACHMENT TRIAL HAS TO
OCCUR AFTER THE PRESIDENT HAS
LEFT OFFICE, THERE IS AN OPEN
QUESTION ABOUT WHETHER THAT N
HAPPEN AT ALL. >> YOU ARE ARGUING AGAINST THE
MOST FAR-REACHING ASPECTS O
ARGUMENT.
>> THAT IS CORRECT.
AND LET ME TURN THEN TO WHY --
>> DO YOU AGREE THAT THERE ARE
SOME ASPECTS OF ARTICLE TWO
PRESIDENTIAL POWER THAT ARE
EXCLUSIVE AND THAT CONGRESS
CANNOT REGULATE AND THEREFORE
CAOT CRIMINALIZE? >> AOLELY.
>> FOR OTHER OFFICIALCT THE
PRESIDENT MAY KE THAT ARE NOT
WITHIN THAT EXCLUSIVE POWER,
ASSUME FOR THE SAKE OF ARGUMENT
THIS QUESTION THAT THERE IS NOT
BLANKE IMMUNITY R OSE
OFFICIAL ACTS, BUT TT
PRESERVE THE SEPARATION OF
POWERS, TO PROVIDE FAIR NOTICE
TO MAKE SURE CONGRESS HAS
THOUGHT ABOUT THIS THAT CONGRESS
HAS TO SPEAK CLEARLY TO
CRIMINIZOFFICIAL ACTS OF THE
PRESIDENT BY A SCIC
REFERENCE.
THAT SEEMS TO BE WH E OLC
OPINIONS SUGGEST.
I KNOW YOU HAVE A LITTLE BIT OF
A EEMENT WITH THAT.
>> JTI KAVANAUGH, I WOULD
LIKE TO TAKE ALL OF THOSE IN
TURN BECAUSE I DO NOT THINK THIS
COURT'S CASES SPEAK THAT BROADLY
AND I DON'T THINK THE OFFICE OF
LEGALOUEL'S OPINIONS STAND
FOR THIS BROAD PROPOSITION THAT
LE THE PRESIDENT IS SPECIFICALLY NAM HIS NOT IN
THE STATUTE AND I DON'T THINK
THAT ISESSARY TO AFFORD
ADVOCATEROTECTION FOR THE
PRESIDENT'S VALID ARTIE O
FUNCTIONS. >> SORRY TO INTERRUPT BUT I WANT
TOET THIS OUT AND YOU CAN
INCORPORATE IT
YOU SET UNLESS THERE IS A
SERIOUS CONSTITUTIALUESTION.
IT IS A SERIOUS CONSTITUTIONAL
QUESTION WHETHER A STATUTE CAN
BE APPLIED TO THEREDENT'S
OFFICIAL ACTS, SO WOULDN'T YOU
ALWAYS INTERPRET THE STATE NOT
TO APPLY TO THE PRESIDENT EVEN
UNDER YOUR FORMULATION UES
CONGRESS HAD SPOKEN WITH
CLARITY? >> I DON'T THINK
ACROSS-THE-BOARD THAT A SERIOUS
CONSTITUTIONAL QUESTION EXISTS
ON APPLYING A CRIMINAL
PROSECUTN THE PRESIDENT.
>> T PROBLEM IS THE VAGUENESS
THAT CAN BE USED AGAINST A LOT
OF PRESIDENTIAL ACTIVITIES
HISTORICALLY WITH A CREATIVE
PROSECUTOR WHO WANTS TO GO AFTER
ESIDENT. >> LET ME TRY TO --
>> THAT IS WHAT WE ARE TALKING
ABOUT HISTORICALLY IS THE RISK
AND GOING FORWARD, THE RISK.
YOU CAN TAKE ALL OF THAT.
>> I TEND TO PUT THE QUESTION
ABOUT THE RISK IS VERY SERIOUS.
IT IS A QUESTION THS COURT
HAS TO EVALUATE.
FOR THE EXECUTIVE BRANCH, OUR
VIEW IS THAT THERE IS A BALANCED
PROTECTION THAT BETTER SERVES
THE INTESTOF THE
NSTITUTION THAT INCORPORATES
BOTH ACCOUNTABILITY AND PROTECTION FOR THE PRESIDENT.
AND I WANT TO GO THROUGH THE
PROTECTIONTH DO EXIST.
BUT PERHAPS IT IS WORTH
RETURNING ATHEUTSET TO THE
STATUTORY CONSTRUCTION QUESTION
THAT YOU RAISED.
THE OFFICE OF LEGAL COUNSEL HAS
SA, IT DOES NOT NAME THE
PRESIDENTM SECTION 201 DOES NOT
NAME THE PRESIDENT.
>> ASSUME THAT IS RSAL.
THAT IS WHAT BREWSTER SAID.
>> THE BRIBERY STATU IN 607
SAYS THE PRESIDENT.
I'OT IIN FRONT OF ME.
THERE IS THAT.
LET ME JUST BACKUP THOUGH A
SECOND OF WHAT WAS A QUICK
EXCHANGE WITH JUSTICE KAVANAUGH
WA TO MAKE SURE I UNDERSTAND.
DID YOU AGREE THAT THERE E
SOME CORE FUNCTIONS OF THE
EXECUTIVE THAT CONGRESS CANNOT
CRIMINALIZE? >> YES.
>> YOU CAN CALL IT IMMUNITY OR
WERE CAN'T DO IT, BUT WHAT
IS THE DIFFERENC
>> WE CALL IT AN AS APPLIED
ARTICLE TO CHALLENGE.
>> CAN WE CALLT MUNITY FOR
SHORTHAND'S SAKE?
I THINK WE ARE NARROWING THE
GROUND OF DISPUTE.
ITEEMS TO ME THERE IS SOME
EAOU CONCEDE THAT THERE ARE
OFFICIAL ACTS THAT CONGRESS
CANNOT CRIMINALIZE AND NOW WE
E LKING ABOUT THE SCOPE. >> I DON'T THINK I SUGGEST,
THINK IT IS A SIGNIFICANT GAP
BETWEEN ANY OFFICIAL ACT AND THE
SMALL CORE OF EXCLUSIVE OFFICIAL
ACTS >> I GOT THAT, BUT I WANT TO
EXPLORE THAT.
R EXAMPLE, LET'S SAY A
PRESIDENT LEADS A MOSTLY
PEACEFUL PROTEST SIT IN IN FRONT
OF CONGRESS BECAUSE HE OBJECTS
TO A PIECE OF LEGISLATN AT
IS GOING THROUGH.
AND IT IN FACDEYS THE
PROCEEDINGS IN CONGRESS.
W,NDER 1512 C2, THAT MIGHT
BE CORRECTLY IMPEDING AN
OFFICIAL PROCEEDING.
IS THAT CORE AND THEREFORE
IMMUNIZED OR WHATEVER EUPHEMISM YOU WANT TO USE WITH THA
FOR IS THAT NOT CORE AND
THEREFORE PROSECUTABLE?
WITHOUT A CLEAR STATEMENT THAT APPLIES TO THERESIDENT.
>> IT IS NOT CORE.
THE CORE KINDS OF ACTIVITIES THE
COURT HAS ACKNOWLEDGED ARE THE
THGSHAT I WOULD RUN THROUGH
THE YOUNGSTOWN ANALYS.
IT IS A PRETTY SMALL SET, BUT
THINGS LIKE THE PARDON POWER,
THEIR POWER TO RECOGNIZE FOUR
NATIONS, THE POWER TO VETO
GIATION, THE POWER TO MAKE
APPOINTMENTS.
THESE ARE THINGS THE
CONSTITUTION SPECIFICALLY ALLOCATES TO T PRESIDENT.
>> SO A PRESIDENT THEN COULD BE
PROSECUTED FOR THE CONDUCT I DESCRIBED?
>> PROBABLY NOT BUT I WANT TO
EXPLAIN THE FRAMEWORK OF WHY I
DON'T THINK THAT THAT WOULD BE
PROSECUTION THAT WOULD BE VALID.
FIRST, I THINK YOU NEED TO RUN
THROUGH ALL OF THE N
CATEGORIES OF ANALYSIS.
YOU MAY WELL DEFAULT TO IT DOES
NOT APPLY.
>> THAT WAS MY QUESTION.
YOU SAID IT FELL OUTSIDE THAT
CORE WE WILL CALL IT IMMUNITY
FOR SIMPLICITY SAKE.
>> BUT THE IA SEPARATE
CATEGORY.
>>HY COULDN'T HE BE PROSECUT
FOR LEADING A CIVIL RIGHTS
PROTEST IN FRONT OF THE CAPITAL
AT DELAYS A VOTE ON A PIECE OF
IMPORTANT LEGISLATION?
>> I THINK WHAT YOU NEED TO DO
IS RUN THROUGH ALL OF THE VERY
PRESIDENT SPECIFIC LAYERS OF
ANALYSIS.
ONE IS WHETHER THE STATUTE WOULD
BE CONSTRUED NOT TO APPLY TO HIS
CONDUCT EVEN IF IT IS NOT PART
OF THAT SMALL CORE OF THINGS
CONGRESS CAN'T REGULATE AT ALL.
IF IT PREVENTS THE PRESIDENT FROM FULFILLING --
>> HE DID SOMETHING MORE AND IT
IMPEDED AND SOUGHT TO INFLUENCE
AN OFFICIAL PROCEEDING.
>> WE ARE STARTING WITHHE
LAYERS OF PROTECTION AND WE ARE
DOWN THROUGH WHETHER THE
STATUTE WOULD BE CONSTRUED TO
APPLY TO HIM.
THEN THERE IS THE QUESTION OF
WHETHER HE HAS THE STATE OF
MIND.
>> NOBODY KNOWS WHAT CORRUPT
INNT MEANS.
HE KNOWS HE IS DOING WRONG, HE
KNOW HE SHOULDN'T BE BLOCKING A
COREMAN. >> LET ME GET TO THE NEXT LAYER
THAT THE PRESIDE DOESN'T --
DOES HAVE AESS TO THE ATTORNEY
GENERAL AND GET REGULAR LEGA
ADVICE AND REGULAR GETS LEGAL
ADVICE FROM THE ATTORNEY GENERAL
ABOUT THE LAWFUL SCOPE OF THE
PRESIDENT'S ACTIVITIES.
THE ATTORNEY GENERAL ADVISES HIM
THAT AS AN INCIDENT OF HIS ARTICLE TO AUTHORITY AND IN
CARRNGUT THE FUNCTIONS OF
THE PRESIDENCY, HEAN LAWFULLY
PARTICIPATE IN THAT PROTEST.
IT IS KIND OF A FIRST AMENDMENT
ANALOG TO THE PRESIDENT'S
OFFICIAL POWERS, WHICH THE COURT
IS EXPLORI IOTHER CASES.
ALTERNATIVELY, THE ATTORNEY
GENERAL COULD ADVISE HIM, THERE
WAS NOTHING THE LANGUAGE OF
THE STATUTE THAT CARVES YOU OUT,
I DON'T SEE A SERIOUS
CONSTITUTIONAL QUEAND IT
AND I WOD VISE YOU NOT TO
VIOLATE ANY CRIMINAL LAW.
>> IF HE GETS A NEGATIVE OPINION
FROM THE ATTORNEY GENERAL, HE
STILL COULDN'T?
IF HE GETS ONE DOES IT ANYWAY,
HE COULD BE PROSECUTED?
>> IF WE ARE DOWN AT THAT LEVEL
WILL WE E KING IS WHETHER
THE PRESIDENT IS SUBJECT TO THE
CRIMINAL LAW AND OUR ANSWER IS
YES, HE IS SUBJECT TO THE
CRIMINAL LAW.
>> I UNDERSTAND THAT THE ONLY
THING COVERED BY THAT IS THE
PRESIDENT IS BARRED FROM SOLICITING OR RECEIVING FUNDS IN
ANY ROOM OR BUILDING.
>> THAT'S RRT.
>> OFFICIAL BUILDING.
SO, AS I UNDERSTAND THIS, THERE
ARTWLIMITED PROVISIONS
MENTIONING THE PRESIDENT THAT
ARE INCLUDED.
THERE IS A WHOLE NUMBER OF
PROVISIONS THAT EXCLUDE THE
PRESIDENT, MANY MORE THAT
EXCLUDE THE PRESIDENT, CORRECT?
IS A SMALL NUMBER ON BOTH SIDES. >> JUSTICE BARRETT MADE THE
POINT THAT IF WE SAY A PRESIDENT
CAN'T BE INCLUDED IN A CRIMINAL
LAW UNLESS EXPLICITLY NAMED,
THEN THAT WOULD BAR THE SENATE
FROM IMPEACHING HIM FOR HIGH
CRIMES ORISMEANORS, BECAUSE
THAT MEANS THAT HE IS NOT
SUBJECT TO THE LAW AT ALL.
CORRECT?
THAT IS A TAUTOLOGICAL.
>> I THINK WHAT JUSTICE BARRETT
WASANG AND WE WOULD AGREE
WITH THAT IS TT DER MY
FRIEND'S POSITION AFTER
IMPEACHMENT HE COULD BE
PROSECUTED, BUT UNDER HIS
STATUTORY CONSTRUCTION APPROACH
ERWOULD BE NOTHING TO
PROSECUTE HIM FOR. >> EXACTLY, THAT IS THE POINT IS
IF HE IS NOT COVEREDY E
CRIMINAL LAW, HE CBE
IMPEACHED FOR VIOLATING IT.
ALL RIGHT.
COULD WE GO FURTHER ON THIS
CLEAR STATEMENT RULE?
E SITUATIONS AND YOU MENTIONED
EARLIER IN WHICH WE HAVE LOOKED
SEE IF THE PRESIDENT IS
COVERED IS CONTEXTUAL, CORRECT?
>> CORRECT.
>> WHAT ARE THE FACTORS WE
NELLY LOOK AT?
I'M THINKING ABOUT WHETHER T
APA COVERS THE PRESIDENT.
>> CRECT.
>> WHAT WE DID WAS ANALYZE WHAT
POWERS WERE BEING GIVEN TO IN
THE LAWSUIT AND ETC.
WE LOOK AT WORDS, STRUCTURE,
SEPARATION OPORS IUE
RELATING TO OUR CASE LAW THAT
SAID YOU CAN'T DIRECT A
PRESIDENT TO DO ANYTHING AND
THIS WOULD HAVE BEEN A SUBTERFUGE FOR THAT.
>> ALL CORRECT.
>> SO I DON'KN WHY -- HOW
THEY WOULD FASON CLEAR STATEMENT RULE THAT WOULD SAY
WHEN A LOSS SS ANY PERSONS
CAN'T ACCEPT A BRIBE, THAT THAT
PERMITS THE PRESIDENT TO DO IT.
>> SO, I AGREE, STE
SOTOMAYOR, THAT THE WAY THAT
THIS COURT HAS INTERPRETED
STATUTES THADOARVE OUTHE
PRESIDENT WAS VERY CONTEXT
ECIFIC.
THE FRANKLIN CASE BASICALLY
INVOLVED A HOLDING THAT WE ARE
HIGHLY UNLIKELY TO SAY THAT THE
PRESIDENT IS AN AGENCY,
SOMETHING THE GOVERNMENT WOULD BE A PECULIAR
UNDERSTANDING OF AGENCY, WHEN
THE EFFECTIVE IT WOULDE AT
WE WOULD REVIEW THE PRESIDENT'S
DECISIONS UNDER STATUTES FOR
ABUSE OF DISCRETION, WHICH IS A
VERY EXTRAORDINARY THING TO DO,
EVEN GOING BACK TO MARBURY.
MARBURY SAYS DISCRETIONARY ACTS
OF THE PRESIDENT OR NOT THE KIND
OF THINGHEOURT REVIEWS.
>> GOINGACK TO WHAT SOME OF MY
COLLEAGUES HAVE ASKED YOU, THERE
APPEARS TO BE SOME NARROWING
PRINCIPLES THAT THE PRESIDE I
SUBJECT TO ALL CRIMINAL LAWS IN
ALL SITUATNS
DO YOU AGREE THAT THIS AFFECTS
RE POWERS THAT HE WOULD NOT BE
SUBJECT TO ANY LAWS THAT
ATTEMPTED TO LIMIT THOSE CORE POWERS?
TT'S CORRECT.
>> YOU ARE DEFINING CORE POWERS
AS THOSE SPECIFIED BY ARTICLE
TWO. >> THAT IS POTENTIALLY CORRECT,
YES.
AND THE OY RDS IN THE
CONSTITUTION OF THAT -- THAT
HAVE TO DO WITH THE PSIDENT IN
LAW IS THAHEHALL TAKE CARE
THAT THE LOBBY FAITHFULLY EXECUTED, CORRECT?
THAT'S RIGHT.
>> HARD TO IMAGINE THAT A
PRESIDENT WHBRKS THE LAW IS
ITHFULLY EXECUTING THE LAW,
CORRECT? >> HE HAS TO EXETE ALL OF THE
LAWS.
>> PRESIDENTS HAVE TO MAKE A LOT
OF TOUGH DECISIONS ABOUT
ING E LAW AND THEY HAVE
TO MAKE DECISIONS ABOUT
QUESTIONS THAT ARE UNSETTLED AND
THEY HAVE TO MAKE DECISIONS
BAD ON THE INFORMATION THAT IS
AIBLE.
DID I UNDERSTAND YOU TO SAY,
LL, IF HE MAKES AISKE, HE
MAKES A MISTAKEHE IS SUBJECT
TO CRIMINAL LAWS JUST LIKE
ANYBODY ELSE?
>> HE IS IN A SPECIAL POTI
FOR A NUMBER OF REASONS.
ONE IS THAT HE HAS ACCESS TO
LEGAL ADVICE ABOUT EVERYTHING HE
DOES.
HE IS UNDER A CONSTITUTIONAL
OBGAON WHERE HE IS SUPPOSED
TO BEAITHFUL TO THE LAWS AND
THE NSTUTION AND MAKING A
MISTAKE IS NOT WHAT LANDS YOU IN
A CRIMINAL PROSECUTION.
THERE HAS BEEN SOME TALK ABOUT
THE STATUTES ISSUED IN THIS
CASE.
I THINK THEY ARE FAIRLY
DESCRIBED AS STUTES ENGAGING
SPIRACIES TO DEFRAUD THE UNITED STATES WITH RESPECT TO
ONE OF THE MOST IMPORTANT
FUNCTIONS, NAMELY THE CERTIFICATION OF THE NEXT
PRESIDT. >> I DON'T WANT TO DISPUTE THAT
PARTICULAR APPLICATION OF THAT
371 CONSPIRACY TO DEFRAUD THE
UNITED STATES, BUT WOULD YOU NOT
AGREE THAT THAT IS A PULRLY
OPEN-ENDED STATUTORY
PROHIBITION?
THAT FRAUDND THAT PROVISION
UNDER LIKE MOST OTH FUD
PROVISIONS DOESN'TEQRE ANY
IMPAIRMENT OF A PROPERTY INTEREST?
IT IS DESIGNED TO PROTECT THE
FUNCTIONS OFHENITED STATES
GOVERNMENT AIS DIFFICULT TO THINK OF A MORE CRITICAL
FUNCTION THAN THE CERTIFICATION OF WHO WON THE ELECTION.
>> I'M NOT DISCUSSING THE
PARTICULAR FACTS OF THIS CE
BUT IT APPLIES TO ANY FRAUD THAT
INTERFERES SERIOUSLY WITH ANY
GOVERNMENT OPERATION. >> WHAT THE GOVERNMENT NEEDS TO
OWS AN INTENTO IMPEDE,
INTERFERE, OREFT A LAWFUL
GOVERNMENTAL FUNCTION BY
DECEPTION AND IT HAS TO BE DONE.
THESE ARE NOT THE KINDS OF
ACTIVITIES THAT K ANY OF
US WOULD THINK A PRESIDENT NEEDS
TO ENGAGE IN IN ORDER TO FULFILL
HIS ARTICLE TWO DUTIES AND
PARTICULAR A CASE LIKE THIS ONE.
I NT TO PICK UP SOMETHING THE
URT SAID EARLIER ABOUT A
PUBLIC OFFICIAL ACTING
ACHIEVE PUBLIC ENDS.
AS APPLIED TO THIS CASE, THE
PRESIDENT HAS NO FUNCTIONS WITH
RESPECT TO THE CERTIFICATION OF
THE WINNER OF THE PRESIDENAL
ELECTION.
IT SEEMS LIKELY THAT THE FRAMERS
DESIGNED THE CONSTUTN THAT
WAY BECAUSE AT THE TIME OF THE
FOUNDING PRESIDENTS HAD NO TWO
TERM LIMIT, THEY COULD RUN AGAIN
D AIN.
THEY WERE EXPECTED POTENTIALLY TO WANT TO DO THAT.
THE POTENTIAL FOR SELF-INTEREST
WOULDXPLAIN WHY THE STATES
CONDUCT THE ELECTIONS, THEY SEND
ELTORS TO CERTIFY WHO WON
THOSE ELECTIONS AND TPRIDE
VOTES, AND THEN CONGRESSN
EXTRAORDINARY JOINT SESSION CERTIFIES THE VOTE.
E PRESIDENT DOESN'T HAVE AN
OFFICI RE IN THAT PROCEEDING.
IT IS DIFFICULT FOR ME TO
UNDERSTAND HOW THERE COULD BE A
SERIOUS CONSTITUTIONAL QUESTION
ABOUT SAYING YOU CAN'T USE FRAUD
TO DEFEAT THAT FUNCTION, YOU
CAN'T OBSTRUCTED THROUGH
DECEPTION, YOU CAN'T DEPRIVE
MILLIONS OFOTS OF THEIR
RIGHT TO HAVE THEIR VOTE COUNTED
FOR THE CANDIDATES WHO THEY
CHOSE. >> THANK YOU, COUNSEL.
STICE THOMAS?
JUSTICE ALITO?
>> WE ST BRIEFLY REVIEW
THE LAYERS OF PROTECTION YOU
THINK EXISTS?
I'M GOING TO START WITH WHAT THE
D.C. CIRCUITS AT.
THE FIRST LAYER OF PROTECTIO IS
THAT ATTORNEYS GENERAL AND OTHER
JUSTICE DEPARTMENT ATTORYS CAN
BE TRUSTED TO ACT IN A
PROFESSIONAL AND ETHICAL MANNER.
>> YES.
>> HOW ROBUST IS THAT
PROTECTION?
THE VAST MAJORITY OF ATTORNEYS
GENERAL AND JUSTICE DEPARTMENT
ATTORNEYS AND WE BOTH SERVED IN
THE JUSTICE DEPARTNTOR A
LONG TIME ARE HONORABLEEOE
AND THEY TAKE THEIR
PROFESSIONAL, ETHICAL
RESPONSIBILITIES SERIOUSLY, BUT
THERE HAVE BEEN EXCEPTIONS BOTH
AMONG ATTORNEYS GENERAL AND
FEDERAL PROSECUTORS.
>> THERE HAV RARE
EXCEPTIONS, JUSTICE ALITOBU
OF PTECTION, I DO THINK THISYERS
IS THE STARTING POINT AND IFHE
COURTS HAVE CONCERNS ABOUT THE
ROBUSTNESS OF IT, I WOULD
SUGGEST LOOKING AT THE CHARGES
IN THE CASE. >> I'M GOING TO LKBOUT THIS
IN THE ABSTRACT BECSEHAT IS
BEFORE US DOES INVOLVE THIS
PAICAR CASE, WHICH IS
IMMENSELY IMPORTANT, BUT
ATEVER WE DECIDE WILL APPLY TO
ALL FUTURE PRESIDENT
AS FOR ATTORNEYS GENERAL, TWO HAVE BEEN CONVICTED CMINAL
OFFENSES IN OFFICE.
OTHERS, A TCLL PALMER COMES
TO MIND, WHO IS WIDELY REGARDED
AS HAVING ABUSED THE POWER OF
HIS OFFICE.
WOULD YOU AGREE WITH THAT?
>> I WOULD, BUT THEY ARE
OFFICIALS IN A LONG LINE OF
ATTORNEYS GENERAL WHO DID NOT
AND IN DEPARTMENT OF JUSTICE
STAFFED MTIPLE PEOPLE WOULD
DO IT THEIR OFFICE.
JUSTICE ALITO, THE POINT
WANTED TO MAKE ABOUT THIS CASE
DOES GO TO THE GENERAL PROPOSITION.
THE ALLEGATIONS ABOUT THE MISUSE
OF THE DEPARTMENT OF JUSTICE TO
PERPETUATE ELECTION FRAUD SHOW
EXACTLY HOW THE DEPARTMENT OF
JUSTICE FUNCTIONS IN THE WAY
ATT IS SUPPOSED TO.
PETIER IS ALLEGED TO HAVE
JUSTICE TO SEND FRAUDULEENT OF
LETTERS TO THE STATES TO GET
THEM TO REVERSE ELECTORAL
RESULTS. >> I UNDERSTAND THAT.
BUT AS I SAID, THI CASE WILL
HAVE EFFECTS THAT GO FAR BEYOND
THIS PARTICULAR PROSECUTION.
SO MOVING ON TO THE SECOND LEVEL
OF PROTECTION THAT THE D.C.
CIRCUITS CITED.
FEDERAL GRAND JURIES WILL SHID
FORMER PRESIDENTS FROM
UNWARRANTED INDICTMENTS.
HOW MUCH PROTECTION T?
>> IT AFFORDS TWO LEVELS OF
PROTTI.
ONE IS THE PROBABLE CAUSE
FINDING REQUIRES EVIDENCE.
SOME OF THE FEARS ABOUT
GROUNDLESS PROSECUTIONS AREN'T
SUPPORTED BY EVIDENCE AND THEY
ARE NOT GOING TO GET OUT OF THE
STARTING GATE. >> THERE IS THE OLD THOUGHT
ABOUT INDICTING A HAM SANDWICH.
YOU HAD A LOT OF EXPERIENCE IN
THJUSTICE DEPARTMENT.
YOU COME ACROSS A LOT OFAS
WHERE THE U.S. ATTORNEY OR
ANOTHER FEDERAL PROSECUTOR
REALLY WANTED TO INDICT A CASE
IN THE GRAND JURY REFUSED TO DO
SO? >> THERE ARE SUCH CASES.
YES.
>> OE ERE IS ANY CLIPS TOO.
[LAUGHTER]
>> FOR THE MOST REASONS
ECUTORS HAVE NO REASON TO
BRING A CA T A GRAND JURY AND
SECURE AN INDICTMENT WHERE THEY
DON'T HAVE EVIDENCE TO PROVE
GUILT UNDER ABLE DOUBT.
IT IS SELF-DEFEATING.
>> THE THIRD IS THAT THEY ENJOY
ALL THE PTEIONS AFFORDED ALL
CRIMIN DEFENDANTS.
TH BE TRUE AT THE END OF
THE DAY BUT A LOT CAN HAPPEN BETWEEN E TIME WHEN AN
INDICTMENT IS RETURNED AND THE
TIME WHEN THE FOER PRESIDENT
FINALLY GETS VINDICATION,
PERHAPS ON APPEAL.
ISN'T THAT CORCT
T IS CORRECT, BUT I THINK WE
SHOULD CONSIDER THE HISTORY OF
THIS COUNTRY.
AS MEMBERS OF THE COURT HAVE
OBSERVED, IT IS BAKED INTO THE
CONSTITUTION THAT ANY PRESIDENT
KNOWS THAT THEY ARE EXPOSED TO
POTENTIAL IMAL PROSECUTION.
IT IS COMMON GROUND THAT ALL FORMER PRESIDENTS HAVE KNOWN
THAT THEY COULD BE INDICTED AND
CONVICTED.
AND WATERGATE CEMENTED THAT
UNDERSTAIN
THE WATERGATE SMOKING GUN CASE
INVOLVED PRESIDENT NIXON AND HR
HALDEMAN TALKING ABOUT AND THEN
DECIDING TO USE THE CIA TO GIVE
A BOGUS STORY TO THE FBI TO SHUT
DOWN A CRIMINAL INVESTIGATION. >> MR. SOUR AND OTHERHA
IDENTIFIED EVENTS IN THE PAST WEREREDENTS HAVE ENGAGED IN
CONDUCT THAT MIGHT HAVEEEN
CHARGED AS FEDERAL CRIMES AND
YO SAY, THAT IS NOT REALLY UE
AND THIS IS PAGE 42 OF YOUR
BRIEF, SO WHAT ABOUT PRESIDENT
FRANKLIN DOOVELT DECISION TO
INTERN JAPANESE AMERICANS DUNG
WORLD WAR II?
COULDN'T THAT HAVE BEEN CHARGED
CONSPIRACY AGAINST CIVIL RIGHTS? >> TODAY, YES, GIVEN THE COURT'S
DECISION IN TRUMP VERSUS UNITED
ATES IN WHICH -- TRUMP VERS
HAWAII IN WHICH THE COURT SD
KOREMATSU WAS OVERRULED AND
PRESIDENT ROOSEVELT MADE THE
DECISION WITH THE ADVICEF HIS
ATTORNEY GENERAL.
>> IS THAT REALLY TRUE?
I THOUGHT THERE WAS RELYO
THREAT OF SABOTAGE, AS DID J
EDGAR HOOVER?
>> THERE IS A LOT OF HISTORICAL
CONTROVERSY.
THAT OCCURRED DURING WARME AND
IT IMPLICATES A POTENTIAL COMMANDER-IN-CHIEF CONCERNS,
CONCERNS ABOUT THE EXIGENCIES OF
NATIONAL DEFENSE THAT MIGHT
PROVIDE AN AS APPLIED ARTICLE TO
CHALLENGE ATHEIME.
I'M NOT SUNG TODAY.
BUT THE IDEA THAT A DECISION
ATAS MADE AND WAS ENDORSED
BY THE COURT PERHAPSRONGLY
WOULD SUPPORINAL PROSECUTION UNDER 241 WHICH
QUIRES UNDER KNIGHTED STATES
THAT IT HAD BEEN MADE SPECIFIC
SO THERE IS NOTICE TO THE
PRESID >> WE COULD GO T OTHER
HISTORICAL EXAMPLES, I WON'T DO
THAT.
LET ME TOUCH BRIEFLY ON A COUPLE
OF OTHER THINGS.
THE RELEVANCE OF ADVICE OF
COAND I WASN'T CLEAR WHAT
YOUR ANSWER IS.
IF THE PRESIETS ADVICE
FROM THE ATTORNEY GENERAL THAT
SOMETHING IS LAWFUL THAT AN
ABSOLUTE DEFENSE? >>ES, I THINK THAT IT IS UNDER
THE PRINCIPLE OF ENTRAPMENT.
THIS IS A DUE S DOCTRINE
THAT WE REFERRED TO IN OUR
BRIEF.
WE CITED AUTHORITY OF THIS COURT
THAT IF AN AUTHORIZED GOVNMT
REPRESENTATIVE TELLS YOU THAT
WH Y ARE ABOUT TO DO IS
LAWFUL, IT WOULD BE A ROOT
VIOLATION OF DUE PROCESS TO
PRECUTE YOU FOR THAT. >> W'T THAT GIVE PRESIDENTS
INCENTIVE TO BE SURE TO PICK AN
ATTORNEY GENERAL WHO WILL
RELIABLY TELL THE PRESIDT AT
IT IS LAWFUL TO DO WHATEV T
PRESIDENT WANTS TO DO IF THERE
IS ANY POSSIBLY CONCEIVABLE
ARGUMENT IN FAVOR OF IT?
>> THINK THE CONSTITUTIONAL
STRUCTURE PROTECTS AGAINST THAT RI
THE PRESIDENT NOMINATES THE
ATTORNEY GENERAL AND THE SENATE
PROVIDES AICAND CONSENT.
THESE ARE THE STRUCTURAL CHECKS
THAT HAVE OPERATED FOR 200 YEARS
TO PREVENT THE KIND OF ABUSES
THAT MY FRIEND FEARS GOING
RWD AS A RESULT OF THIS ONCE
IN HISTORY PROSECUTION.
>> ON THE QUESTION OF WHETHER A
PRESIDENT HAS THE AUTHORITY TO
PARDON HIMSELF, WHICH CAME UP
EARLIER ARGUMEN WT IS
THE ANSWER TO THAT QUESTION?
>> I 'T BELIEVE THE
DEPARTMENT OF JUSTICE HAS TAKEN
A POSITION.
THE ONLYUTHORITY IS A MEMBER
OF THE OFFICE OF LEGAL COUNSEL
WRE THAT THERE IS NO SELF
PARDON AUTHORITY.
THE DEPARTMENT H N ADDRESSED
IT FURTHER AND THIS COURT HAD
NOT ADDRESSEITITHER.
>> WHEN YOU ADDRESS THAT
QUESTION BEFORE, ARE YOU
SPEANGN YOUR CAPACITY SOLELY
AS A MEMBER OF THE SPECIAL
UNL'S TEAM OR ARE YOU
SPEAKINGN HALF OF THE
JUSTICE DEPARTMENT, WHICH HAS
SPECIAL INSTITUTIONAL REONSIBILITIES?
>> I'M SPEAKING ON BEHALF OF THE
JUSTICE DEPARTMENT REPRENNG
THE UNITED STATES.
>> DON'YOTHINK WE NEED TO
KNOW THE ANSWER AT LEAST TWO THE
JUSTICE DEPARTMENT'S POSITION ON
THATSS IN ORDER TO DECIDE
THIS CASE?
CAUSE IF A PRESIDENT HAS THE
AUTHORITY TO PARDON HIMSELF
BEFORE LEAVING OFFICE AND THE
D.C. CIRCUIT JUDGE RIGHT THAT
THERE IS NO IMMUNITY FROM
PROSECUTION, WON'T THE
PREDICTABLE RESULT BE THA
PRESIDENTS IN THE LAST COUPLE
DAYS OF OFFICE WILL PARDON
THEMSELVES FROM ANYTHING THEY MIGHT HAVE BEEN CONCEIVABLY
CHARGED WITH COMMITTING?
>> I REALLY DOUBTH, IT
PRESUPPOSES A REGIME WE HAVE
NEVER CEPT FOR PRESIDENT
NIXON AND AS ALLEGED IN THE
INDICTMENT HERE.
PRESIDENTS WHO ARE CONSCIOUS OF
HAVING ENGAG I WRONGDOING AND
SEEKING TO SHIELD THEMSELVES.
THE POLITICAL CONSEQUENCES OF A
PRESIDENT WHO ASSERTED RIT
OF SELF PARDON THAT HAS NEVER
BE RECOGZETHAT SEEMS TO
CONTRADICT A BEDRO PNCIPLE OF OUR L TT NO PERSIANS
SHALL BE THE JUDGE IN THEIR OWN
CASE, THOSE ARE ADEQUATE
DETERRENTS SO THAT THIS KIND OF
DYSTOPIAN REGIME IS NOT GOINGO
EVOLVE.
>> LET ME END WITH JUST
QUESTION ABOUT -- WHATS
REQUIRED FOR T FUNCTIONING OF
A STABLE DEMOCRATICOCIETY?
WHICH IS SOMETHING THAT WE ALL
WANT. I'M SURE YOU WOULD AGREWI ME
THAT A STABLE DEMOCRATIC SOCIETY
REQUIRES TT CANDIDATE WHO
LOSES AN ELECTION, EVEN A CLOSE
ONE, EVEN A HOTLY CONTESTEDNE,
LEAVE OFFICE PEACEFULLY, IF
THAT CANDIDATE IS THE INCUMBENT.
>> OF COURSE.
>> ALL RIGHT.
IF AN INCUMBENT WHO LOSES AER
CLOSE, HOTLY CONTESTED ELECTION
KNOWS THAT A REAL POSSIBILITY
AFTER LEAVING OFFICE IS NOT THAT
THE PRESIDENT IS GOING TO BE
ABLE TO GO OFFNTA PEACEFUL
RETIREMENT, BUT THAT E
PRESIDENT MAY BE CRIMINALLY PROSECUTED BY A BITR LITICAL
OPPONENT, WILL THAT NOT LEAD US
INTO A CYCLE THAT DESTABILIZE
THE FUNCTIONING OF OUR COUNTRY
AS A DEMOCRACY?
AND WE CAN LOOKROD THE WORLD
AND FIND COUNTRIES WHERE WE HAVE
SEEN THIS PROCESS WHERE THE
LOSER HROWN IN JAIL.
>> I THINK IT IS EXACTLY THE
OPPOSITE, JUSTICE ATO.
THERE ARE LAWFUL MECHANISMS TO
CONTEST THE RESUS AN
ELECTION.
AND OUTSIDE THE RECORD, BUT I
THINK A PUIC KWLGE,
PETITIONER AND HIS AIES FILED
DOZENS OF ELECTORAL CHALLENGES
AND IN MY UNDERSTANDING HAS LOST
ALL BUT ONE THAT WAS NOT OUTCOME
TEINATIVE IN ANY RESPECT.
THERE WERE JGES THAT SAID IN
ORR SUSTAIN SUBSTANTIAL CLAIMS OF FRAUD THAT WOULD
OVERTURN AN ELECTION RESULT THAT
IS CERTIFIED BY A STATE, YOU
NEED EVIDENCE, YOU NEED PROOF,
AND NONE OFHO THINGS WERE
MANIFESTED.
THERE AAPPROPRIATE WAY TO
CHALLENGE THINGS THROUGH THE
UR WITH EDEE, IF YOU
LOSE, YOACPT THE RESULTS,
THAT HAS BEEN THE NATION'S
EXPERIENCE IN THE COURT IS WELL FAMILIAR WITH THAT.
>> THANK YOU.
. >> JUSTICE SOTOMAYOR.
>> A STABLE DEMOCRATIC SOCIETY
NEEDS THE GOOD FAITH OF ITS
PUBLIC OFFICLS CORRECT?
>> ABSOLUTEL
>> THAT GOOD FAITH ASSUM TT
THEY WILL FOLLOW THE LAW.
>> CORRECT.
>> PUTTING THATSIDE, THERE IS
FAILSAFE SYSTEM OF GOVERNMENT.
MEANING, WE HAVE A JUDICIAL
SYSTEM THAT HAS LAYERS AND
LAYERS AND LAYERS OF PROTECTN
IN THE HOPES THAT THE IOCT
WILL GO FREE.
WE FAIL ROUTINELY.
T WE SUCCEED MORE OFTEN TN
NOT.
IN THE VAST MAJORITY OF CASES,
THE INNOCENT DO GO FREE.
SOMETIMES THEY DON' AND WE HAVE
SOME POSTCONVICTION REMEDIES FOR
THAT
BUT WE STILL FAIL.
HE EXECUTED INNOCENT
PEOPLE.
HAVING SAID THAT, JUSTICE ALITO
WENT THROUGH STEP-BY-STEP ALL OF THE MECHANISMS THATOU
POTENTIALLY FAIL.
IN THE END, IF IT FAILS
COMPLETE I IS BECAUSE WE HAVE
DESTROYED OUR DEMOCRACY ON OUR
OWN, IS IT?
>> IT IS AND I THINK THERE ARE
ADDITIONAL CHECKS IN THE SYSTEM.
A SEPARATED POWER SYSTEM WAS
DESIGNED TO LIMIT ABUSES.
ONE OF THE WAYS IN WHICH ABU
ARE LIMITED IS ACCOUNTABILITY
WIIN THE CRIMINAL LAW, BUT THE
ULTIMATE CHECK IS THE GOODWILL
AN FAITH IN DEMOCRACY AND
CRIMES THAT ARE ALLEGED IN THIS
CASE THAT ARE THE ANTITHESIS OF
DEMOCRACY --
>> AN ENCOURAGEMENT TO BELIEVE
WORDS TH HE BEEN PUT INTO SUSPICION HERE, THAT NO MAN IS
ABOVE THE LAW, EITHER IN HIS
OFFICIAL OR PRIVATE ACTS.
>> I THINK THAT IS AN ASSUMPTION
OF THE CONSTITUTION.
>> JUSTICE KAGAN?
>> I WANT TO GO THROUGH YOUR
FRAMEWORK AND KEURE I
UNDERSTAND IT.
FIRST, OTHSMALL CATEGORY OF
THINGS THAT Y S HAVE
ABSOLUTE PROTECTION, THAT THEY
ARE CORE EXECUTIVE FUNCTIONS.
WHAT ARE THOSE SMALL CATORS?
>> PARDON POWER.
VITO.
>> VITO.
FOREIGN RECOGNITION.
APPOINTMENTS.
CONGRESS CANNOT SAYOUANNOT
APPOINT A FEDERAL JUDGE WHO
HASN'T RECEIVED AERTAIN
DIPLOMA OR HASN'T ACHIED
CERTAIN AGE.
THERE ARE A FEW OTHEPORS.
>> IS COMMANDER-IN-CHIEF?
>> COMMANDER-IN-CHIEF IS ON THE
LIST, T I WANT TO ADD TO MY
ANSWERNTHAT CONGRESS HAS
SUBSTANTIAL AUTHORITY IN THE
NATIONAL SECURITY ROUND.
ITLARES WAR, RAISES THE
ARMY.
>> TT MAY BE VIEWED IN THE SET
OF FUNCTIONS THAT NOBODY HAS IT
OVER.
>> NOW IN THE NEXTATORY
WHERE WE HAVE LEFT THE CORE SET BEHIND AND WE ARE THE WORLD
OF OICL ACTIONS WHERE YOU
SAY THERE ARE VARIOUS STATUTORY
CONSTRTI RULES THAT MIGH
COME INTO PLAY.
COULD YOU VEHARACTERIZED
THOSE AS SOMETHING DFENT
FROM SAYING THE STATUTE DOESN'T
SAY THE PRESIDENT THEREFORE IT
DOESN'T APPLY TO THE PSIDENT?
>> THAT'S RIGHT.
>> I WANTED TO GIVE YOU
OPPORTUNITY TO SAY HOW THAT
WOULD LOOK, HOW THAT ANYS
WOULD LOOK IN A GIVEN CASE AND
IN THE COURSE OF RESPONDING TO
THAT, I'M SORT OF TNKG OF
SOMETHING LIKE THE OLC OPINION,
WHICH SAYS BRIBERY, THE
PRESIDENT CAN BE TRIED AND
CONVICTED OF BRIBERY WHY IS THAT
TRUE >> THAT IS TRUE BECAUSE THERE IS
NO SERIOUS CONSTITUTIONAL WESTON
THAT THE PRESIDENT NEEDS TO ENGAGE IN BRIBERY TO CARRY OUT
CONSTITUTIONAL FNS.
BRIBERY IS A NEWMAN AIDED SO IT
FALLS OUTSIDE OF ANYTHING THAT
COULD BE VIEWED AS INHERENT IN
THEEEOF ARTICLE TWO TO
FUNCTION.
>> DO YOUHINK THE PREMISE OF
THAT OLC OPINION WAS THAT
BRIBERY WAS SIMPLY NOT OFFICIAL
OR IS THE PREMIS THAT THE
BRIBERY WAS OFFICIAL AN STILL
THE PRESIDENT COULBE PROSECUTED FOR?
>> I THINK BRIBERY IS A KIND OF
HYID THAT ILLUSTRATES THE
ABUSE OF PUBLIC OFFICE FOR PRAT GAIN THAT WE THINK OUR
PARADIGM ATTIC OF THINGS THAT
SHOULD BE NOHE TO BE IMMUNE.
THE PUBLIC OFFICIAL CANNOT
TRT THE BRIDE WITHOUT THE
OFCI POWER TO OFFER AS QD
OR PRO.
I GUESS THE PRO ACTUALLY.
IT IS A CRIME THAT C OY BE
COMMITTED BY PUBLIC OFFICIALS
WHO MISUSE THEIR POWER.
IT IS ONE OF THE THINGS THAT WAS
MOST MISTRUSTED. MANY OF E ACTS CHAEDN THIS
INDICTMENT OR THAT WOULD VIOLATE
CRIMINAL LAW INVOLVE THE MISUSE
OF OFFICL WER FOR PRIVATE GAIN.
>>O IF YOU WERE TO SAY WHAT
THE LINE IS IN THIS CATEGORY,
LI WHEN IT IS THAT THE STATUTE
SHOULD BE UNDERSTOOD AS
PRECLUDING PRESIDENTIAL
PROSECUTION AND WHEIT IS THAT
THE STATUTE SHOULD BE UNDERSTOOD
AS ALLOWING IT, WHAT GENERAL
PRINPL SHOULD GUIDE?
T GENERAL PRINCIPLES I
THINK KIND OF EMERGE FROM
OKG AT WHAT THE OFFICE OF
LEGAL COUNSEL HAS DONE.
FOR EXAMPLE, WITH RESPECT TO A
FEDEL STATUTE THAT PROHIBITED
APPOINTMENTSO CORDS- COURTS,
THE OFFICEF GALOUNSEL SAID
THIS INFRINGES ON THE POWER TO
POINT FEDERAL JUDGES.
IT CANNOT BE PRESUMED TT
CONGRESS INTENDED TO DO THAT
BECAUSE IT WOD ISE A SERIOUS
CONSTITUTIONAL QUESTION.
THRE ARE CATEGORIES OF
ATES WHERE THE PRESIDENT IS IN.
LIKE THE GRASSROOTS LOBBYING
STATUTE.
THE OLC WROTE AN OPINION ABOUT
THAT AND IT IDOR THE
PRESIDENT OR OTHER PUBLI OFFICIALS TO GO OUT IO THE
WORLD TO PROMOTE TIR PROGRAMS,
ATAN'T BE WHAT CONGRESS
INTENDED TO PROHIBIT.
WHAT IT DID INTEND TO PROHIBIT
IS USING FEDERAL FUNDS TO GIN UP
AIFICIAL GRASSROOTS
CAMPAIGN THAT GAVE THE
APPEARANCE OF EMERGI FM THE
PEOPLE THAT IT WAS REALLY TOP
DOWN.
THE OLC SAID THE PRESIDENT AND
OFFICIALS WHO CARRY OUT THE
PRESIDENT'SANDATES ARE SUBJECT
TO THAT STATUTE SO THAT IS A
MORE NUANCED ONE.
AND THOSE ARE THE EXPL THAT
I WILL GIVE YOU.
THE THIRD ISTATUTE THAT
WOULD PERMIT PROSECUTION FOR
CONTEMPT OF CONGRES
THELCONCLUDED THAT A GOOD
FAITH SEION OF EXECUTIVE
PRIVILEGES A REASON FOR NOT
OVIDING INFORMATION TO
CONGRESS WOULD PRECLUDE
PROSECUTION BECAUSE CONGRESS CANN B DEEMED TOAVALTERED
THE SEPARATION OF POWERS IN SUC
A MANNER.
I THINK OLCOULD HAVE PROBABLY
GONE ON TO SAY OF CONGRESS TRIED
TO DO IT, IT WOULD BE DEEMED
UNCONSTITUTIONAL.
NOT SPECIFICALLY NAME THEAT DID
PRESIDENT.
THERE ARE ONLY TWO THAT DO THAT.
SO THE ENTIRE CORPUS OF FEDERAL
CRIMINAL LAW INCLUDING BRIBERY
OFFENSES, SEDITION, MURDER,
WOULD ALL O LIMITS IF IT
WERE TAKEN TO THE EXTENT THAT
SOME OF THE QUESTIONS HAVE
SUGGESTED.
AND IT DOES RAISE A SERIOUS
CONSTITUTIONAL QUESTION.
IF SO, TO WHAT EXTENT CAN BE
CARVED OUT INDIVIDLL
AND THERE MAY BE SOME INSNC
WHERE THE STATUTES HERE COULD BE
CARVED O AND A PARTICULAR ACT
COULD BE FOUND TO BE PROTECTED.
OR DOES THE STATUTE ACROSS THE
BOARD IN SUCH A WIDE RANGE OF
APPLICATIONS, SOMEWHAT ALOUS
TO OVERBREADTH ANALYSIS,
INFRINGE ON THE PRESIDENT'S
POWEO WE CAN SAY THAT?
>> THAT SET OF ISSUES SEEM
POANT AND MAY BE DIFFICULT
OCCASIONALLY.
THEY ALSO SE N REALLY BEFORE
US IN THE WAY JUSCEACKSON
SUGGESTED EARLIER.
DO Y TNK THEY ARE BEFORE US
AND WE SHOULD CLEAR IT UP, HERE
IT IS?
WHAT ELSEOULD WE DO?
HOW COULD WE DO -- DEAL WITH
THIS?
WHETHER OR NOT THERE IS THIS
ABSOLUTE IMMUNITY.
>> I THINK THE COURT HAS THE
DISCRETION TO REACTH ISSUE.
IT WAS NOT RAISED IN THE DISTRICT COURT AND IT WAS NOT
RAISED IN THE COURT AEALS.
THE ANALYSIS WLD USE TO GET
THERE IS A FUONF A COUPLE OF
PRINCIPLES.
THE COURT HAS OFTEN RESOLVED
THRESHOLD QUESTIONST ARE A
PREREQUISITE TO AN INTELLINT
RESOLUTION OF THE QUESTION
PRESENTED.
IN A CASE LIKE UNID ATES
VERSUS GRABS THE COURT REACHED
OUT TO DECIDE WHETH
ANTICIPATORY WARRANTS ARE VALID
UNDER THE FOURTH AMENDMENT
BEFORE TURNGO THE QUESTION
OF WHETHER THE TRIGGERING
CONDITION F AN ANTICIPATORY
WARRANT HAD TO BE IN THE
WARRANT.
THAT IS ONE PRINCIPAL.
AND THEN A PRECEDENT THAT BEARS
SOME ANALOGY TO THIS IS VERMONT
TURAL RESOURCES AGENCY V.
THE FIRSTION WAS WHETHER A
STATE AGENCA PERSON WITHIN
THE MEANING OF THE AND THE
SECOND QUESTION WAS WHETHER IF
THE STATE AGENCY WAS 11TH
AMENDMENT IMMUNITY KICKE IN,
AND THE COURT WROTE AN ANALY
OF WHY IT COULD REACH BOTH
QUESTIONS.
HING THE PERSON QUESTION DID
NOT EXPAND JURISDICTION AND IT
CONSTITUTIONAL AVOIDANCE TO DO
THAT. THERE ARE CONSIDERATIONS THAT
CUT AGAINST THI
FOR OVERALL GOVERNMENTITIES,
WE ARE NOT WILD ABOUT PARTIES
WHO RAISE AN IMMUNITY CASE THAT
CAN BE PRESENTED TO A COURT ON
APPEAL AND THEN SMUGGLING AND OTHER ISSUES.
NOT TO HAVE AN EXPANSIVEE THE
APPROACH TO THAT ISSUE.
BUT THE FINAL THING THAT D
SAY ABOUT THIS IS PART OF OUR
SUBMISSION TO THIS COURT IS THAT
THE ARTICLE ONE BRANCH AND THE
ARTICLE TWO BRAHEARE ALIGNED
IN BELIEVING THAT THIS
UTION IS AN APPROPRIATE
WAY TO ENFORCE THE LAW.
CONGRESS BY MAKING THE LAW, THE
CURRENT EXECUTIVE BY DECIDING TO
BRING IT
IT IS A BUILDING BLOCK OF THAT
SUBMISSION ITH CONGRESS
ACTUALLY DID APPLY THESE
CRIMINAL LAWS TO OFFICIAL
CONDUCT, THE COURT MAY WISHO
EXERCISE DISCRETION TO RESOLVE
THAT ISSUE. >> I HAVE ONE LAST SET OF
QUESTIONS WHICH HAS TO DO WITH
THE OFFICIAL UNOFFICIAL LINE
YOU HEARD MR. SOUR'S RESPOES
TO JUSTICE BARRETT'S QSTNS
AND MY QUESTIONS ABOUT WHAT HE THINKS COUNTS AS OFFICIAL HERE'S
ANWH HE THINKS IS UNOFFICIAL
HERE.
I'M WONDERING WHAT YOU TOOK FROM
S RESPONSES AND ALSO HOW YOU
WOULD CHARACTERIZE WHAT IS
OFFICIAL AND WHAT IS NOT
OFFICIAL IN THIS INDICTMENT.
SO, I THINK PETITIONER
CONCEDED THAT THERE ARE ACTS
THAT ARE NOT OFFICIAL THAT ARE
ALLEGED IN THE INDICTMENT.
WE AGREED ON ALL OF THAT.
EVERYTHING ELSE ABOUT WHAT HE
SAID AS OFFICIAL AND WT
NOT.
ORGANIZING FRAUDULENT SLATES OF
ECRS, CREATING FALSE
DOCUMENTATION THAT SAYS I'M AN
ELECTOR, I HAVE BEENPPNTED
PROPERLY, I'M GOING TO SEND A
VOTE TO CONGRESS THAT REFLECTS
THATIONER WON RATR AN
THE MOSTOT AND IT WASTUALLY GOT
ASCERTAINED BY THE GOVERNOR AND
HIS ELECTORS WERE APPOINTED TO
ST VOTES, THAT IS NOT OFFICIAL
CONDUCT.
THAT IS CAMPAIGN CONDUCT A I
THINK THAT THE D.C. CIRCUIT
JUDGE LASTING CASDI DRAW A
APPROPRIATE DISTINCTION. A FIRST-TERM PRESIDENT RUNNING
FOREELECTION CAN ACT
INCACI OF OFFICE SEEKER OR
OFFICEHOLDER.
WHEN WORKING WITH PRIVATE
LAWYERS AND IN PRIVATE-PUBLIC
RELATIONS ADVISING TO GIN UP
FRAUDULENT SLATES OFLEIONS,
THAT IS NOT PART OF A
PRESIDENT'S JOB.
>> THERE IS AN ALLEGATION IN THE
INDICTMENT THAT HAS TO DO WITH
THE REMOVAL OF A JUSTICE DEPARTMENT OFFICIAL.
IS THAT CORE PROTECTED CONDUCT?
>> WE DID NOT THINK THAT IS CORE
PROTECTED CONDU.
I DON'T THINK I WOULD CHARACTERIZE THAT EPISODE QUITE
THAT WAY. WE DO AGRT THE DEPARTMENT
OF JUSTICE ALLEGATIONS WERE A
E OF THE PRESIDENT'S OFFICIAL
POWER.
IN MANY WAYS, WE THINK THAT
AGGRAVATES THE NATURE OF THIS
OFFENSE.
SEEKING AS AANDATE TO OUST
THE LAWFUL WINR THE
ELECTION AND HAVE ONESELF
CERTIFIED WITH PRIVATE ACTORS IS
A PRIVATE SCHEME TO ACEVA
PRIVATE AND READ FOR AN
INCUMBENT PRESIDENT TO USE HIS
PRESENAL POWER TO TRY TO
ENHANCE THE LIKELIHOOD THAT IT
SUCCEEDS MAKES THE CRIME IN R
VIEW WORSE.
IN THE DEPARTMENT OF JUSCE
EPISODE, THIS OCCURS LATE IN THE
ELECTION CYCLE AFTER MANY OTHER SCHEMES HAVE FAILED.
AT THAT POINT, THE PETITIONER IS
ALGETO HAVE TRIED TO
PRESSURE THEEPTMENT OF
JUSTICE TO SEND FALSE LETTERS TO
THE STATES CLAIMING THERE WERE
SERIOUS ELECTION REGULARITIES
AND THEY SHOULD INVEIGE WHO
THEY CERTIFIED. NONE OF THIS WAS TRUE.
THE DEPARTMENT OF JUSTICE
OFFICIALS ALL SAIDHIWAS NOT
TRUE, WE ARE NOT GOING TO DO
THAT. ATHAT POINT, PETITIONER IS
ALLEGED TO THREATEN TO REMOVE
THE DEPARTMENT OF JUSTICE
OFFICIALS WHO ARE STANDING BY TH OATH AND REPCEHEM WITH
ANOTHER PERSON WHO WARRY
IT OUT.
WE A NOT SEEKING TO IMPOSE
CRINAL LIABILITY ON THE
PRIDENT FOR EXERCISING OR
TALKING ABOUTXERCISING THE
APPOINTMT D REMOVAL POWER.
WHAT WE ARE SEEKING TO IMPO
CRIMINAL LIABILITY FOR IS A
CONSPIRACY TO USE FRAUD TO
SUBVERT THE ELECTIO MEANS
OF WHICH WAS TO TRY TO GET THE
JUSTICE DEPARTMENT TO BE COMPCI
FFENT IF PETITIONER WERE NO
SUCCESSFULND HE HAD ACTUALLY
EXERCISED TO THE APPOINTMENT AN
REMOVAL POWER AND HAD GONE
THROUGH AND THOSE FRAUDULENT LETTERS WERE SENT.
IT WOULD HAVE MADE THECHE
MORE DANGEROUS, BUT IT WOULD NOT
HAVEHAED THE CRIME.
>> HOW DO WE THINK ABOUT THINGS
LIKE CONVERSATIONS WITH THE VICE
PRESIDENT?
IF YOU SAY IT THAT WAY, TY
WOULD FALL UNDER EXECUTIVE
PRIVILEGE.
BUT HOW DOES THAT RELATE TO THE
TION WE ARE ASKING HERE?
>> THIS IS>> ONE OF THE MOST DIFFICULT QUESTIONS FOR THE
DEPARTMENT OF JUSTICE AND I WANT
TO EXPLAIN WHY THAT .
IF WAR OPERATINGNDER A
FITZGERALD VERSUS NIXON LENS
D LOOKING AT THIS THE WAY WE
LOOK AT THINGS WHEN THERIS PRIVATE LAWSUIT FILED AGAINST
THE PRESIDENT, WE TAKE A VERY
BROAD VIEW OF WHAT THE OUTER
PERIMETER OF OFFICIAL
PRESIDENTIAL ACTIO IS IN ORDER
TO BE AS PROTECTIVE OF THE
PRESIDENT AGAINST PRIVATE
WSUITS THAT HAS THE COURT
AINED IN NIXON VERSUS
FITZGERALD CAN BE VERY
DELETERIOUS TO T PRESIDENT'S
CONDUCT OF BUSINESS.
IF WE WERE PUTTING THIS UNDER A
FITZGERALD LEN W WOULD HAVE
TO ANSWEQUESTION, WAS HE
SEEKER OR WAS HE ACTING IN THE
CAPACITY AS OFFICEHOLDER?
IF YOU RUN THRGHHE
INDICTMENT, YOU CAN FINSUORT
FOR THOSE TWO CHARACTERIZATIONS
AND THE DEPARTMENT OF JUSTICE
HAS NOT T D TO COME TO GRIPS
WITH HOW WE WOULD ANALYZE THAT
SET OF INTERACTIONS. >> THANK YOU.
>> JUSTICE GORSUCH?
>> I WANTED CFIRM I THOUGHT
I HEARD THAT YOU THOUGHT THAT
THE BLASINGAME FRAMEWORK WAS THE
APPROPRIATONE. >> LARLYYES.
WE AEEITH THE IDEA OF THE
DISTINCTIO BETWEEN OFFICEHOLDER
AND OFFICE SEEKER.
WE ALSO AGREE THAT IF IT IS
OBJECTIVELY REASONABLE W
THE ACTIVITIES AS OSOF
OFFICEHOLDER, THEN THE
FITZGERALD IMMUNITY KICKS IN.
I THINK WE WOULD LOOK MORE AT
THE CONTENT OF THE ACTUAL
INTERACTION IN ORDER TO MAKE
THAT DETERMINATION THAN
BLASINGAME SUGGESTED ON THE
FACTS OF THE CASE MIGHT BE
PROPRIATE. >> CAN YOU GIVE ME AN EXAMPLE OF
WHAT Y HAVE IN MIND MIGHT BE
APPROPRIATE?
I'M TRYING TO UNDERSTAND THE
NUANCE.
>> BLASINGAME, GENERALLY VER
FAVORABLE, PRO-GOVERNMENT
FRAMEWORK THAT WE ENDORSE.
NOT HERE, BECAUSE WE DON'T THINK
FITZGERALD APPLIES. >> I UNDERSTAND THAT, BU
PUTTING THAT ASIDE, THE
DIINCTION BETWEEN OFFICIAL ACT AND PRIVATE OFFICE SEEKER, THEIR
TEST IS YOU THINK GOOD ENOUGH
FOR VEMENT WORK?
>> ON THIS ONE, THE DEPARTMENT
HASN'T TAKEN A NEXT STEP SINCE
THE BLASINGAME DECISION, BUT LET
ME OFFER A FEW THOUGHTS THAT
MIGHT CLARIFY IT
THE BLAS DECISION FOCUSED
ON OBJTI CONTEXTUAL
INDICATIONS TO SEE WHETHER THE
PRESIDENT WAS ACTING AS A
CAMPAIGNER AS OPPOSED TO AN
OFFICEHOLDER.
I THINK THAT THAT DECISION CAN
ALSO BE
AND WH THE PRESIDENT ACTUALLY
SAID.
LET ME ILLUSTRATE THAT BRIEFLY.
IN ONE OF THE INTERACTIONS
BETWEEN PETITION AND A STATE
OFFICIAL, PETITIONER IS ALLEGED
TO HAVE SAID I NEED YOU TO FIND
ME 11,000 VOTES.
I THINK IF YOU LOOK AT THAT
CONTENT, IT'S PTTY CLEAR THAT
PETITIONER IS ACTING IN THE CAPACITY AS OFFICE SEEKER, NOT
AS PRESIDENT, AND WE WOU LK
AT THAT CONTENT.
>> BUT I AM JUST FOCUSED ON THE
LEGAL TEST.
I'M NOT ARG ANY EXCEPTIONS
TO IT.
>> OTHER THAN OFF-LIMITS THAN I
WOUL
>>K.
AND WANT TO UNDERSTAND ON THE
CORE IMMUNITY FOR WHATEVER BIRD
USE, IT SEEMS TO ME WE ARE
NARROWING THE GROUND OF DISPUTE
HERE CONSIDERABLY.
DO WE LOOK AT MOTESTHE
PRESIDENT'S MOTIVES FOR HIS
TIS? I MEAN, FOR EXAMPLE, HE HAS LOTS
OF WAR POWS,S WE DISCUSSED,
BUT HEIG USE THEM IN ORDER TO ENHANCEISERSONAL
INTERESTS.
IS THAT RELEVANT CONSIDERATION
WHEN WE ARE LOOKING AT CORE
POWERS? >> I AM THINKING OF THISAS
LOOKING AT THE OBJECTIVE OF THE
ACTIVITIES AS OPPOSED TO THE
KIND OF SUBJECTIVE MOTIVE IN THE
SENSE THAT YOUR HONOR SUGGES.
I THINK THERE IS A LOT OF
CONCERN ABOUT SAYING ELECTORAL
VOTE IS TO BE RLEED.
>> EVERY FIRST-TERMRESIDENT,
EVERYTHING HE DOES CAN BE SEEN
THROUGH THE PRISM BY CRITICS,T
LEAST, OF HIS PERSON IEREST
IN REELECTION.
SO YOU WOULDN'T WANT THAT, I
INYOU WOULD SAY, PERSONAL
MOTIVATION THOUG LIMITS WITH RESPECT TTHCORE POWERS.
WH RESPECT FOR POWERS, WE
THINK THERE ARE THINGS THAT CAN
BE REGULATED AT ALL.
>> REGARDLESS OF MIV
SO THAN ANY NONCORE POWERS IS
WHAT WE ARE FIGHTINGVE
WHAT ROLE DO MOTIVES PLAY, THEN?
ONE COULD REMOVE AN APPOINTEE --
FIRST OF ALL, MAYBE ASKHIS
FIRST.
IS REMOVING AN APPOINTEE, A
PRESIDENTIAL APPOINTEE A CORE
POWER OR NONCORE POWER?
>> HERE I MIGHT EDO
DIFFERENTIATE BETWEEN THE
CRITALOLE OFFICERHAHAVE
BEEN REGARDEDS HAVING A
CONSTITIAL STATUS OF BEING REMOVABLE AT WILL FROM THE
OFFICERS WERE CONGRESS DOES HAVE
SOME REGATY LATITUDE TO
IMPOSE RESTRICTIONS ON REMOVAL.
>> I UNDERSTAND THAT.
>> PUTTING THAT ASI,
APPOINTING A PRINCIPAL OFFICER
IS A CORE POR.
'M NOT PREPARED TO SAY THAT
THERE IS NO POTENTIAL CRIMINAL
REGULATION TO SAY YOU CAN'T DO
IT FOR CORRUPT PURPOS TO
ENRICH YOURSELF, FOR EXAMP.
>> BRIBERY, ALRIT.
BUT MOTIVES COME INTO THE CORE
POWER ANALYSIS ARE NOT, AT THE
FRONTEARD KNOW, AND NOW I AM
HEARINMAE.
>> THINK KATIE MIGHT BE MORE
APPROPRIATE BECAUSE THE
DEPARTMENT HAS NOT HAD TO TAKE A
POSITION ON EXACTLY HOW THESE
CORE POWERS WOULD RESOLVED AS
APPLIED CONSTITUTIONAL ANALYSIS.
NONE IS INVOLVED IN THIS CASE.
>> I GUE 'M WONDERING -AND
'M NOT CONCERNED ABOUT THIS
CASE IS FUTURENES -- THESE
NONCE WERS AND MAYBE CORE
POWERS WERE A PRESIDENT IS
ACTING WITH AT LEAST PART
PERSONAL INTEREST IN GETTING
REELECTED, EVERYTHING HDO HE
WANTS TO GET REELECTED.
IF YOU A AOWING HIM MOTIVE
TO COLOR THAT, I'M WONDERING HOW
MUCH IS LEFT OF EITHERHEORE
OR NONCORE POWERS.
>> WOULD BE FINE WITH CARVING
THAT OUT AND DEEMING THAT TO BE
SOMETHING THAT IS INTRINSIC IN
OUR ELECTORAL SYSTEM.
WE ARE NOT TALKING AUT
APPLYING CRIMINAL LAW TO
SOMEBODY WHO MAKES AN
ANNOUNCEMENT THAT THIS PROGRAM
LL BE GOOD FOR THE UNITED
STATES AND SOMEBODY COULD COME
ALONG AND SAY WELL YOU REALLY
DID IT TO GETEECTED.
LEAVING ASIDE WHETHER ANY EVENT
VIOLATES A CRIMINAL LAW, LET'S
ASSUME THAT IT DOES.
I'M DOUBTFUL THAT IT DOES
BECAUSE I DON'T THINK CRIMINAL
LAWS GENERALLY OPERATE ON
MOTIVES AS OPPOSED TO OBJECTIVES
AND PURPOSES, BUT -- >>
INTENTION ASIDE, INTENTION IS
EMOTIVE ANDMOTIVE IS
INTENTION, SALUTE LEAVE THAT
ASIDE. >> PUTTING THAT ASIDE, THAT
REALLY TO ME FALLS IN A VERY
DIFFERENT CATEGORY, AND IT IS
ALSO -- >> THERE ARE SOME
MOVETHATRE COGNIZABLE AND
HE THAT AREN'T.
IS AWKWARD WHEN WE LOOK BACK
AT THE INJUNCTION OF THE EARLY
CASES. YOU CAN'T ENJOIN A PRESIDENT.
YOU CAN HOLD HIM IN CONTEMPT.
FOR SURE.
>> CAN I TRY ONE MORE TIME TO
CLIF
>>T DIDN'T MATTER WHAT THE
PRESIDENT'S MOTIVES RE WE ARE
NOT GOING TO LOOK BEHIND IT.
SAME THING WITH NIXO
WE SAID GOSH, THAT IS SOMETHING
COURTS SHOULDN'T GET ENGAGE IN
BECAUSE PREDES HAVE ALL
MANNER OF MOTIVES.
AND 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 IECTION OR WHO
KNOWS WHAT CORRUPT MEANS IN 1512
, WDON'T KNOW WHAT THAT MEANS.
BUT THE DANGEROUSNESS O
ACCUSING YOUR POLITICAL OPPONENT
OF HAVING BAD MOTIVES, IF IS
ENOUGH TO OVERCOME YOUR CORE
POWERS OR AN OTHER LIMS,
REACTIONS, THOUGHTS?
>> YOU'RE RAISING A VERY
DIFFICULT QUESTION.
THAT IS THE IDEA.
TESTING THE LIMITS OF BOTH DE
ARGUMENTS.
AND SOMETHING I D'T NORMALLY
SAY, THAT IS REALLY NOT INVOLVED
IN THIS CASE.
[LAUGHTER]
WE DON'T HAVE BANK POLITICAL
MOTIVE IN THAT SENSE.
>> I APPRECIATE THAT BUT YOU
ALSO APPRECIATEHAT WE ARE
WRITING A RULE FOR THE AGES.
>> AND I THINK I WOULD START BY
LOOK THE STATUTES.
SEEING WHAT RESTRICTIONS THEY DO
PLACE ON THE PRESIDENT'S
CONDUCT.
FOR EXAMPLE, THE STATUE THAT
RIROUGHT TO THE FEET THE
LAWFUL FUNCTION OF THE UNITED STATES.
STATUTE DEFINES WHAT THE
HAS TO HAVE IN MIND.DEFENDANT
HAS TO BE TO DEFEAT SOMETHING
THE UNITED STATES IS DOING AND
IT HAS TO BE BY DECEPTION.
I DON'T THINK THAT GETS US INTO
UND OF MOTIVE-HUNTING IN
THE AREA WHERE WE ARE AS
CONCERNED AS THE CORPO
ABOUT DOING SOMETHING THAT WOULD
UNDERMINE THE PNCY AND THE
EXECUTIVE BRANCH.
ANAY HAVE DIFFERENT VIEWS
ON THE CLA AND THE SCOPE OF
THAT STATUTE.
I THINK IF REPORT DOES INTERPRET
CORRUPT AS INVOLVING A
CONSCIOUSNESS OF WRONGDOING AND
ELEVATES THAT THE CONSCIOUSNESS
OF ILLEGALITY, AND WE ARE IN A
FFERENT R
WANTING TO GET REELECTED IS NO
AN ILLEGAL MOTIVE YOU DON'T
HAVE TO WORRY ABOUT PROSECUTING PRESIDENTS FOR THAT.
>> THANK YOU. >> JUSTICE KAVANAUGH?
>> AS YOU' IICATED THIS CASE
HAS HUGE IMPLICATIONS FOR THE
PRESIDENCY, AND THE FUTURE OF
THE PRESIDENCY, FOR THE FUR
OF THE COUNTRY, IN MY VIEW.
YOREFERRED TO THE DEPARTMENT A
W MES AS HAVING SUPPORTED
POSITION.
WHO IN THE DEPARTMENT?
THE PRESIDENT, THE ATTORNEY
GENERAL? >> THE GENERAL THE UNITED
STATES.
PART OF WHICH THE WAY IN WHICH
THE SPECIAL COUNSEL FUNCTIONS IS
AS A DONTF THE DEPARTMENT
OF JUSTICE, THAT WE REACH OUT
AND CONSULT AND ON A QUESTION OF
THIS MAGNITUDE THAT INVOLVES
EQUITIES THAT ARE FAR BEYOND
THIS PROSECUTION, AS THE
QUESTIONS T COURT.
>> SO THE SOCIR GENERAL.
COND, LIKE JUSTICE GORSUCH,
I'M NOT FOCUSED ONHE HEARING
NOW OF THIS CASE.
I'M VERY CONCERN AUT THE
FUTURE. I THINK ONE OF THE COURT'S
BIGGEST MISTAKES WAS ORSON VS.
OLSON.
I THINK THAT WAS A TERRIBLE
POSITION FOR THE PRESIDENCY AND
FOR THE COUNTRY.
AND NOT BECAUSE THERE WERE BAD
PEOP A INDEPENDENT COUNCILS,
BUT PRESIDENT REAGAN'S
MINISTRATION, PRESIDENT BUSH,
PRESIDENT CLINTON WERE REALLY
HAMPERED, IN THEIR VIEW, ALL
THREE, BY THINPENDENT
COUNSEL STRUCTURE.
AND WHAT I'M WORRIED ABOUT HERE
IS, LET'S RELAXRTLE TWO A
BIT FOR THE EDOF THE MOMENT.
I'M WORRIED ABOUT A SIMILAR KIND
OF SITUATION APPLYING RE
THAT WAS A PROSECUTOR
INVESTIGATING A PRESIDENT IN
EACH OTH CIRCUMSTANCES,
SOMEONE PICKED FROM THOPSITE
PARTY, CURRENT PRESIDENT,
USUALLY WAS HAVE TO WORK.
ANTHE FAIRNESS OF A PROCESS
MUST BE JUDGED ON THE BASISF WHAT IT PERMITS TO HAPPEN, NOT
WHAT ITRODUCES IN THE
PARTICULAR CASE.
YOU'VE EMPHASIZED MANY TIMES
REGULARITY OF THE DEPARTMENT OF
JUSTICE.
AND HE SAID, AND I THINK THIS
APIE TO THE INDEPENDENT
COUNSEL SYSTEM AND CAN APPLY IF
PRESIDENTS ARE ROUTINELY SJE
TO INVESTIGATION GOING FORWARD.
ONE THING ICERTAIN, HOWEVER,
IT INVOLVES INVESTIGATING AND
PERHAPS BUS GETTING A PARTICULAR
INDIVIDUAL.
CAN MINE -- WHAT WOULD THE
REACTION BE IF IN AN AREA NOT
COVEREBYHE STATUTE, THE
JUSTICE PAMENT HOSTED A PUBLIC NOTICE INVITING
APPLICANTS TO ASSIST IN AN
VESTIGATION AND POSSIBLE
PROSUTN OF A CERTAIN PROMINENT PERSON?
DOES THIS NOT INVITE WITH
JUSTICE JACKSON DESCRIBED AS PICKING THE MAN ANDNSTING
THE LAW BOOKS OR PUTTING
INVESTIGATS WORK TO PINS
AND EFFECTS ON HIM?
TO BE REHE INVESTIGATION
MUST RELATE TO THE AREA CRIMINAL
OFNS TESTIFIED BY THE
STATUTE.
NOTHING PREVENTED FROM BNG
VERY BROAD. I PARAPHRASE AT THE END BECAUSE
I AM REFERRING TO THE JUES
THAT IS THE CONCERN GOING
FORWARD, IS THATHE SYSTEM WHEN
FORMER PRESIDENT ARE SUBJECT IS
GOING TO CLE BACK AND BE USED
AIT THE CURRENT OR NEXT
PRESIDENT AND THE PRESIDENT
AFTER THAT.
ALL THAT, I WANT YOU TO TRY TO
ALLAY THAT CONCERN.
WHY IS THIS NOT ORSON V OLSON
REDUX IF WE AGREE WITH YOU?
>> FIRST OF ALL THE INDEPENDENT
NT REGIME DID HAVE MANY
STRUCTURAL FEATURES THAT
EMPHASIZEDNDEPENDENCE AT THE
PEE OF ACCOUNTABILITY.
WE DON'T HAVE THAT REGIME NOW
BUT EVEN UNDER THAT REGIME I
THINK IF YOU LOOKED AT LAWRENCE
WALSH'S REPORT ON IRAN CONTRA,
THAT WAS A VERAMENTAL
POINT FOR THE COURT TO CONSIDER.
JUDGE WALSH SAID I INVESTIGATED
ESATRS, THE PROOF DID NOT
MERELY COME CLOSE TO ESTABLISHINGRINAL VIOLATION.
THROUGH THE INDEPENDENT COUNSEL
ERA, WITHOUT THESE PROSECUTIONS
HAVING GONOFF ON A RUNAWAY
TRAIN.
>> I THINK PRESIDENT REAGAN,
BUSH, AND CLINTON WHETHER
RIGHTLY OR WRONGLY THOUGHT CONTRARY TO WHAT YOU JUSTAI
>> I THINKOBODY LIKES BEING
DIDN'T RESULT IN THE KIND OF IT
VINDICTIVE PROSECUTION THAT I
THINK YOURONS RAISING.
WE HAVE A DIFFERENT ST NOW.
I THINK THERE WAS A CONSEUS
THROUGHOUT WASHINGTON THAT THERE
WERE FLAWS IN THE INDEPENDENT COUNSEL SYEM
WE NOW ARE INSIDE THE JUSTICE
DEPARTMENT WITHL
ACCOUNTABILITY RESTING WITH THE ATTORNEY GENERAL, SO THE SPECIAL
COUNSEL REGULATION NOW DOESN'T
OPERATE THE WAY THAT THE
INDEPENDENT COUNSEL REGULATIONS
DO.
THIS CORPORA HE SOMETHING TO
SAY ABOUT IT, I THINK, IF IT
WERE REVIV.
I'M T SURE ANYBODY IS IN FAVOR
OF THAT. >> I WASAYG THE MIRROR IMAGE
OF THAT ISNEAY SOMEONE COULD
PERCEIVE IT.
T I TAKE YOUR POINT ABOUT THE
DIFFERENT STRUCTURAL PROTECTIO
INTERNALLY.
LIKE JUSTICE SCALIA SAID, I DO
NOT MEAN TO SUGGEST ANYTHING OF
THE SWORD THE PRESENT CASE, WE
ARE NOT TALKING ABOUT THE PRESENT CA.
I'M TALKING ABOUT THE FUTURE.
ANOTHER POINT, YOU TKED ABOUT
THE CRIMINAL STATUTE.
IT'S VERY EY TO CHARACTERIZE
PRESIDENTIAL ACTIONS AS FALSE OR
MISLEADING UNDER VAGUE STATUTES.
PRESIDENT LYNDON JOHNSON,
STATEMENTS ABOUT T VTNAM WAR
SAY SOMETHING IS FALSE.
TURNED OUT TO BE FALSE THAT HE
SAYS ABOUT THE VIETNAM WAR.
371 PROCUON AFTER HE LEAVES
OFFICE? >> I THINK NOT.
THIS IS AN AREA THAT I DO THINK
MERITS SOME SERIOUS AND NUANCE
CONSIDERATION.
STATEMENTS THAT ARE MADE BY A
PRESIDENT TO THE PUBLIC ARE T
REALLY COMING WITHIN THE REALM
OF CRIMINAL STATUTES.
THEY'VE NEVER BEEN PROSECUTED.
I ALE THAT THE COURT CAN SAY
WHAT IF THEY WEREANTHEN I
THINK YOU GET WT I WOULD REGARDS A HARD CONSTITUTIONAL
QUESTION.
I WOULD PROBABLY GUIDE THE
AWAY FROM TRYING TO RESOLVE THAT
TODAY, ALTHOUGH I DO THINK IT IS
VERY DIFFERENT FROM OUR CASE AND
DISTINCTION WILL IN IMPORTANT
BUT YOU ARE DEALING HERE WITH
TWO BRANCHES OF GOVERNMENT THAT
HAVE AAROUNTNTEST IN THE
INTEGRITY AND EEM OF THEIR
INTERACTIONS WITH EACH OTHER.
ON THE ONE HAND, THE PRESIDE
OF COURSE SHOULD BE VERY FREE TO
USUAY SEND HIS CABINET
OFFICIALS AND SOME CABET
OFFICIALS TO CS TO PROVIDE
THEM WITH THE INFORMAEEDED
TO ENACT LEGISLATION AND TO MAKE
NATIONAL POLICY.
WE ARE VERY CONCERNED ABOUT
ANYTHING THATOU TRAMPLE
THAT.
ON THE OTHERS HAVE THE EQUATION,
CONGRESS HAS A COMPELLING
INTEREST IN RECEIVING ACCURATE
INFORMATION AND T VERY
LEAST, INFORMATI TT IS INTENTIONALLY AND KNOWINGLY
FALSE.
THAT WOULD POLLUTE THE --
>> HOW ABOUT PRESIDENT FORD'S
PARDON?
VERY CONTROVERSIAL IN THE
MOMENT.
HUGELY UNPOPULAR, PROBABLY WHY
HE LOST IN 1976.
NOW LOOKED UPON AS ONE OF THE
BETTER DECISIONS C
PRESIDENTIAL HISTORY I THINK BY
MOST PEOPLE.
IF HE IS THINKING ABOUT IF I
GRANT THIS PARDON TO RICHARD
NIXON,OU I BE INVESTIGATED
MYSELF FOR OBSTRUCTION OF
JUSTICE ON THE THEORY THAT I'M
INTERFERING WITH THE
INVESTIGATION OFRD NIXON?
>> SO THIS WOULD FALL INTO THAT
SMALL CORE AREA THAT I MENTIOD
TO JUSTICE KAGAN OR JUSTICE
GORSUCH OF PRESIDENTIAL
POSSIBILITY THAT CONGRESS CANNOT
REGULATE.
>> HOW ABOUT PRESIDENT OBAMA'S
DRONE STRIKES? >> IF THE OFFICE OF LEGAL
COUNSELKED AT US.
CAREFULLY DETERMINED THAT NUMBER
E, THE FEDERAL MURDER STATE
DOES APPLY TO THE EXECUTIVE
BRANCH, THE PRESIDEN WOULD BE
PERSONALLY CARRYING OUT THE
STRAIGHT, BUT THE AIDIN
ABETTING LAWS ARE BROAD AND IT
IS DETERNETHAT A PUBLIC
AUTHORIT EXCEPTION THAT IS
BUILT IN STUS AND THAT
APPLIES PARTICULARLY TO THE
INVERTER STATUTE TALKSBO
UNLAWFUL KILLING NOT APPLY
TO THE DRONE STRIKE.
SO THIS IS ACTUALLY THE WAY THAT
THE SYSTEM CAN FUNCTION.
THE DEPARTMENT OF JUSTICE TAKES
IT RUNS THROUGH THE ANALYSIS.
VERY CAREFULLY WITH ESTABLISHED
PRCIES.
IT DOCUMTSHEM, EXPLAINS
THEM, AND THEN T PSIDENT CAN
GO FORWARD IN ACCORD.
>> THANK YOU FOR YOUR ANSWERS.
>> I WANT TO PICK UP WITH THAT
BLIC AUTHORITY DEFENSE.
I'M LOOKING AT THAT LLC MEMO
AT YOU CITED IN YOUR BRIEFS.
HE DESCRIBES THE PUBLIC
AUTHORITY DEFENSE SETTING E
MODEL PENAL CODE WITH A FEW
DIFFERENT DEFINITIONS, BUT I
WILL JUST HIGHLIGHT THIS ONE.
JUSTIFYING CONDUCT WHICH IS
REQUIRED OR AUTHORED BY THE
LAW DEFINING THE DUTIES OR
FUNCTIONS OF A PUBLIC OFFICER,
THE LAW GOVNI THE ARMED
SERVICES WERE 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 IS NARROWEAN I
RECOGNIZE IT IS IN HIS DEFENSE,
BUT WHEN WE LOOK T
DEFINITION OF IT, ARE YOU ACTING
WITHIN THE SCOPE OF AUTHORITY
CONFERRED BY LAW, DIHAING A
DUTY CONFERRED BY LAW?
I THINIT IS NARROWER THAN
NIXON AND FITZGERALD, THAT IS WHAT IT SOUNDS LIKE TO M
DO YOU AGREE OR DISAGREE?
>> I CERTAINLY UNDERSTAND THE
INTUITION THAT WE ACT OUTSIDE OF
YOUR LAWFUL AUTHORITY, YOU KIND
OF BEEN NO LONGER CARRYING IT
OUT. I DON'T THINTH THAT QUITE
WORKS FOR PRESIDENTIAL ACTIVY.
THE ONLY WAY HE ULHAVE
IMPLEMENTED THE ORDERS IS BY
COMMANDER-IN-CHIEF AUTHORITY
OVER THE ARMED FORCES OR HIS
AUTHITTO SUPERVISE THE
EXECUTIVE BRANCH.
THOSE SM KE POOR EXECUTIVE
ASKED TO BE. THERE ISUCH A POSSIBILITY AS
AN UNLAWFUL EXECUTIVE ACT.
>> I'M NOT SU INDERSTAND
YOUR ANSWER.
IT SEEMS TO ME TT YOUR
BRIEF TODAY, WHEN YOU REFERRED
TO THE PUBLIC AUTHORITY DEFENSE,
THAT IS ONE OFHEUILT-IN
PROTECONOF WHY COMMUNITY IS
NOT CEARY.
E IN SOME OF THESE
INSTANCES, WHEN THE PRESIDENT
TAKES SUCHCTION THAT THE
COURTS ASKED MIGHT AS RESULT IN
CRIMINAL PROSECUTION, YOU SAY
WELL HE COULD RAISE THIS PUBLIC
AUTHORITY DEFENSE?
I'M SAYING ISN'T TH PLIC
AUTHORITY DEFENSE, IF RAISED,
DOESN'T IT SOUND LIKE A DENS
THAT SAYS WELL, AS AUTD BY
LAW, I TO DISCHARGE DYSFUNCTION?
>>NDHEREFORE I ACTED
LAWFULLY.
>> THEREFORE ACTED LAWFULLY AND
NOT CRIMINALLY LIABLE.
DID THAT INVOLVE A LOOK INTO
MOTIVES, KIND OF LIKE WHAT JUSTICE GORSUCH WAS ASKING?
COULD YOU SAY I WAS ACTING
WITHIN THE SCOPE OF MY AUTHORITY
BY GRANTING AARN, REMOVING A
CABINET OFFICER, BUT THEN THE
PUBLIC AUTHORITY DEFENSE MIGHT
NOT APPLY BECAUSE YOU HAD A B
MOTIVE IN DOING SO? >> I DON'T THINK SOICE
BARRETT.
I THINK AND OPERATE ON OBJECTIVE
FACTS DISCLOSED TO COUNSEL, IN
THIS CASE THE DEPAME OF
JUSTICE, AND IT IS AN
OBJECTIVELY VALIDEFSE, A
COMPLETE DEFENSE TO PROSECUTIO
THING THAT STRIKES ME AS
DIFFERENT, FOR ONE THING THAT IS
OBVIOUSLY DIFFERENT BETWEEN THE
PUBLIC AUTHORI DEFENSE AND
IMMUNITY AND THE INTERLOCKING
APPEAL AND HAVING IT RESOLVED AT
THE OUTSET.
WHAT WOULD BE SO BAD ABOUT
HAVING A QUESTION LIKE THAT
RELTT THE THRESHOLD OF
HAVING THE AND IMMUNITY?
THSAME TIME TO QUESTION THEY
COULD BE BROUGHT UP AS A
THRESHOLD AND THEN IT
INTERLOCKING APPEAL WOULD BE A
FREEDOM FROM STANDING TRIAL, BUT
NOT A GET OUT OFFREE CARD. >> I UNDERSTAND THAT.
IF T CRT BELIEVE THAT THAT
WITH THE APPROPRIATE WAY
CRAFT PRESIDENTIAL PROTECTIONS,
IT HAS THE AUTHORITY TO CRAFT
PROCEDURAL RULES THAT IMPLEMENT
ITS ARTICLE TWO CONCERNS.
THAT SAID, PUBLIC AUTHORITY, WE
ARE CALLING A DEFENSE, BUT
UNDER MANY STATE ACTUALLY
AN EXCEPTION TO LIABILITY SELF.
WHAT Y A REALLY TALKING
ABOUT IS TRYING THE GENERAL ISSUE.
GENERALLY, IN CRIMINAL CASES,
EVENAS THAT INVOLVE FIRST
AMENDMENT ISSUES LIKE THREAT
STATUTES, THE JURY IS THE
DETERMINANT OF FACTS.
AND 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 INTERLOCKING AEAL BEFORE
YOU COULD GET INTO A CRIMINAL
CASE.
I WOULD RATHER THAT TN TOTAL
ABSOLUTE BLANKET IMMUNITY THAT
TAKES AWAY THE POSSIBILITY OF
CRIMINAL PROSECUTION, EVEN IF IT
IS A CORE VIOLATION OF THE
STATUTE OF ATTORNEY GENERAL
ADVICE AND HAS NO OVERRIDING
PUBLIC AUTHORITY.
>> I WASN'T NECESSARILY
PROPOSINACALLY TREATING IT
AS A DEFENSE THAT WAS GOING TO
BE OUTSIDE AND SUBJECT TO
APALI WAS PROPOSING WHAT
ABOUT AND IMMUNITY DOCTRINE A
TRUE FROM THE PUBLIC AUTHORITY
DEFENSE OF THE DEPARTMENOF
JUSTICE THAT THEY THINK WOULD OTHERWISE PL
SO JUST GO WITH ME ON THAT FOR A
MINUTE.
WHY WOULD IT BE BAD FOR IT
NOT TO BE A JURY QUESTION? THERE
IT SEEMS TO ME SOME OF THESE
CONCERNS WOULD BE EXACERBATED BY
HAVING I GO TO A JURY RATHER
THAN A JUDGE.
>> I THINK SOME OF THEMRE
JUDGE QUESTIONS THAT COULD BE
RESOLVED IN THE FACE OF THE
INDICTMENT.
IF THE DEPARTMENT OF JUSTICE
EVER RETURNED AN INDICTMENT THAT
SAID TUANCE OF THIS PARDON
OR THIS SERIES OF PARDONS
CONSTITUTED OBSTRUCTION OF
JUSTICE, I HAVE A LITTLE
DIFFICULTY HYPOTHESIZING IT, BUT
A MOTION TO BE MADE ON THE FACE
OF THE INDICTMENT THIS
ARTICLE TWO INCLUDES CONGRESS
FROM REGULAR THINGS ACTIVITIES,
THE DIED NEEDS TO BE
DISMISSED.
IF THE COURT WISHED TO ATTH
THAT KIND OF A RULE INTERLOCUTOR
HE APPEAL, THAWOD BE A
LEER SAFEGUARD THAN THE ONE
THAT MY FRIEND IS PROPOSING
HERE.
OTR NDS OF DEFENSES REALLY
IERSECT WITH THE GENERAL MUCH GREATER TIMSENG HOW THE
COURTS COULD IMPLEMENT THAT.
WITH EVERY COST INTO TRIAL?
YES, THERE IS NO PERFECT SYSTEM
HERE.
WE'RE TRYING TO DESIGN A SYSTE
THAT PRESERVES THE EFFECTIVE
FUNCTIONING OF THE PSINCY
AND THE ACCOUNTABILITY OF A
FORMER PRESIDENT UNDER THE RE OF LAW.
AND THE PERFECT SYSTEM THAT CALIBRATES ALL OF THOSE VALUES
PROBABLY HASOTEEN DEVISED.
I THINK THAT THE SYSTEM THAT WE
VEORKS PRETTY WELL, MAYBE IT
NEEDS A FEW ANCILLARY RULES.
EVEN DIFFERENT FROM THE RADICAL
PROPOSAL.
>> I AGREE.
THAT ME ASK YOU STATE
PROSECUTIONS BECAUSE IF THE
PRESIDENT HAD SOD OF
TY THAT IS IMPLICIT IN
ARTICLE TWO, AND THAT IMMUNITY
WOULD PROTECT HIM FROM STATE
PROSECUTION AS WELL.
A LOT OF THE PROTECTIONS WERE
TALKING ABOUT OUR INTERNAL PROTECTIONS TH FEDERAL
GOVERNMENT HAS, PROTECTIONS AND
THE PARTNEICE WHICH
OBVIOUSLY ARE NOT APPE AT
THEANY STATE AND LOCAL
JURISDICTIONS ACROSS THE
COUNTRY.
WHAT DO YOU HAVE TO SAY TO THAT?
>> THE COURT WOULD RUN A
SUPREMACY CLAUSE ANALYSIS THAT
WOULD PROBABLY START WITH BASIC
PRINCIPLES LIKE MCCULLOCH VERSUS
MARYLAND
THE STATES DO NOTTHE
AUTHORITY TO BETTER ASHBURTON
FEDERALUMPTIONS AND THEN
WOULD F MOVE THROUGH AND
WHEN NAGEL WHERE THE COURT SAID
THAT A STATE MURDER PROSECUTION
OF A FEDERAL OFFICIAL GUARDING
THE SUPREME COURICE AND
WHO FIRED A SHOT WAS NO
PERMISSIBLE.
IF THE COURT THOUGHT THAT YOU
EDED A MORE CATEGORICAL RULE
FOR THE STATES, I THINK THE
SUPREMACYLAE CERTAINLY
LEAVES IT WITHIN THE COURTS
PRERATE TO DETERMINE THAT
THE PRESIDENT, UNLIKE ALL OTHER
OFFICIALS, DESERVES MORE OF A
ROBUST FEDERAL DEFENSE THAN WHAT
I HAVE JUST DEVISED.
>> BUT IT WOULD STILL BE A
DEFENSE.
THAT IS MY POIN
IT IS ONE THING TO SAY THE
PRESIDENT, THEY ARE NOT GOING TO
BE THESE PSECUTIONS THAT WERE
POLITICALLY MOTIVATED THAT MIGHT
BE THE DANGER OF THE SYSTEM.
THAT MIGHT NOT CAR THE DAY,
BUT THAT IS A CONCER
TOTALLY DIFFERENT WHEN YOU TAKE
IT OUTDEHE DEPARTMENT OF
JUSTICE AND ITS STRUCTURES AND THEN YOU THROW IT OUT ELSEWHERE.
THE IDEA OF AN IMMUNITY I THINK
HAS A LOMO PURCHASE IF YOU
ARE TALKING ABOUT SOMETHING THAT PROTECTS THE FORMER PRESIDENT
FROM STANDING TRIAL AT A STATE
AND LOCAL LEVEL.
>> SO I DON' THAT YOU
WOULD HAVE TO DESIGN AYSM IN
WHICH THE PRESIDENT WOULD HE
TO STAND TRIAL AT THE STATE AND
IT ICEAINLY WITHIN THE
COURTS AUTRI AS A MATTER OF
SUPREMACY CLAUSE LAWO ND AND
IMMUNITY.
BUT WE HAVE BEEN TALKING HER
ABOUT THE DISTINCTION BETWEEN
OFFICIAL ACTS AND PRIVATE ACTS.
THAT WILL HAVE TO BE DETERMINED
BY SOME RTF A PROCESS.
ANY IMMUNITY DEFENSE THAT THE
COT ANNOUNCES CAN STILL BE MET
BY A STAERTION THA WE ARE
PROSECUTING PR CONDUCT, YOU
ARGOG TO HAVE TO HAVE SOME PROCESS.
HANGOME LEGAL PROCESS IS NOT A REASON TO CASTSI A NUANCED
SYSTEM TT ACTUALLY LOOKS AT
WHAT PROTECTIONS ARE NECESSARY
AS OPPOSED TO WHAT WOULD PROVIDE
THE ABSOLUTE MAXIMUM INSULATION
FOR FORMER PRESIDENT, EVEN IF WE
ACKNOWLEDGE THAT IT IS HIGHLY
PROPHYLACT. >> TOTALLY AGREE AND IT WASN'
CONTRASTING THE ABSOLUTE
IMMUNITY RULE, BUT SAYING
THERE IS SOME SORT OF
CONSEQUENCE WERE MAKING
IMMUNITY.
AND SINCE YOU BRING UP THE
PRIVATE ACT THIS IS MY LAST
QUESTION
I HAD ASKED ON PAGE 46 AND 47,
YOU Y EVEN IF THE COURT WERE
INCLINED TO RECOGNIZE SOME IMMUNITY FOR A FORMER
PRESIDENT'S OFFICIAL AC, E
INDICTMENT ALLEGES THE POTENAL
PRIVATE CONDUCT AND YOU SAID
THAT THE PRIVATE CONCTOULD
BE SUFFICIENT.
THE SPECIAL COUNSEL HAS PRESSED SOME CCERN IN
WANTING TO MOVE FORWARD.
THE NORMAL PROCESS WOULD BE FOR
US TO REMAND IF WE DECID THAT
THERE WERE SOME OFFICIAL ACTS
ANTO LET THAT BE SORTED OUT
BELOW.
IT IS ANOTHER OPTION FOR THE
SPECIAL COUNSEL TO JUST PROCEED
BASED ON THE PRIVATE CONDUCT AND
DROP THE OFFICIAL CDU.
>> TWO THINGS ON THAT.
FIRST OF ALL, THERE'S REALLY AN
GRATED CONSPIRACY HERE THAT
HAS DIFFERENT COMPONENTS AS
ALLEGED IN THE INDTMT.
WORKING WITH PRIVATE LAWYERS TO
ACHIEVE E GOALS, AND AS I SAI
BEFORE, REACHG R OFFICIAL
POWERS TO TRY TO MAKE THE
CONSPIRACIES MORE LIKELY TO SUCCEED.
WE WOULD LIKEO ESENT THAT AS
AN INTEGRATED PICTURE TO THE
JURY SO THAT IT SEES THE
SEQUCEND THE GRAVITY OF THE
CONDUCT AND WHY EACH STE
OCCURRED.
THAT SAID, IF THE CORPORATE TO
SAY THAT THE ELECTOR SEM
PRIVATE, REACHING OUT TO STATE OFFICIALS AS A CANDIDA I
PRIVATE,RYG TO EXPLOIT THE
VIOLENCE AFTER JANUARY 6 BY
CALLING SENATORS AND SAYING
PLEASE DELAY THE CERTIFICATION PREEDING IS PVATE, WE STILL
INKINDS WRITE WHAT MY FRIEND
ID THAT WE COULD INTRODUCEHE
ACTIONS OF THE JUSTICE
DEPARTMENT, THE EFFORT
PRESSURE THE VICE PRESIDENT
FURTHEEVENTIARY VALUE AS
FILLING THE DEFENDANT'S
KNOWLEDGE AND INTENT AND WE WOULD TAKE A JURYNSUCTION
THAT WOULD SAY YOU MAY NOT
IMPOSE CRIMINA CULPABILITY FOR
THE ACTIONS THAT HE TOOK,
HOWEVER Y M CONSIDER IT
INSOFAR AS IT BEARS ON KNOWLEDGE
AND INTENT.
THAT ITHE USUAL RULE WITH
ECTED SPEECH, UNDER
WISCONSIN V. MITCHELL.
MY FRIEND ANALOGIZE THIS AS A
SPCH FOR DEBATE CLAUSE BUT WE
DON'T THINK THE SPEECH FOR
DEBATE CAUSES Y PLICABILITY
HERE.
IT IS A VERY EXPLICIT
CONSTITUTIALROTECTION THAT SAYS SENATORS AND
REESTATIVES SHALL NOT BE
QUESTIONED IN ANY OTHER PLACE,
SO IT CARRIES AN EVIDENTIARY
COMPONENT THAT IS ABOVE AND
BEYOND WHATEVER OFFICIAL
IMMUNITY HE IS SEEKING.
AND THE LAST THING I WOULD
ON THIS AS WE THINK THAT THE
CONCERNS OF THE USE OF EVIDENCE
OF PSINTIAL CONDUCT THAT
MIGHT OTHERSEE OFFICIAL AND
SUBJECT TO EXECUTIVE PRIVILEGE
IS ALREADY TAKEN CARE OF BY
IT STATES V. NIXON.
THAT BALANCES THE INTEREST AND
COMFORT- COMPANY GEOLOGY
AGAINST THE NEED OF THE JUDICIAL
SYEM FOR ALL AVAILABLE FACTS
TO GET TO THE TRUTH, AND ONCE
THAT HAS BEEN OVERCOME, WE
SUBMIT THE EVIDENCE CAN BE USED
EVEN IF CULPABILITY CAN'T REST
ON IT.
>> JUST TO PICK UP WHERE JUSTICE
BAETT LEFT OFF, I THINK I
HEARD YOU SAY THAT EVEN IF WE
DEDE HERE A RULE THAT IS NOT
THE RULE THAT YOU PREFER THAT IS
SOMEHOW SEPARATING OUT PRIVATE
FROM ACTS AND SAYING ATHAT
SHOULD APPLY HERE, THERE IS
SUFFICIENT ALLEGATIONS IN THE
INDICTMENT, IN THE GOVERNMENT'S
VIEW, THAT FALLNTO THE PRIVATE
ACTS BUCKET THAT THE CASE SHOULD
BELLOWED TO PROCEED, CORRECT?
BECAUSE IN AN ORDINARY CASE, IT
WOULDN'T BE STOEDUST BECAUSE
ME OF THE ACTS ARE ALLEGED
IMMUNIZED, EVEN IF PEOPLE AGREE
ATOME ARE IMMUNIZED.
IF THERE ARE OTHER ACTS THAT
AREN'T, THE CASE WOULD GO
FORWARD.
GOING BACK TO THE CLEAR
STATEMENT ARGUMENT, MY
UNDETAING WAS THAT WHEN A
CHARGED CRIMINAL STATUTE IS READ
NARROWLY IN E ESIDENTIAL
CONTEXT DID NOT APPLY TO THE
PRESIDENT, A CONSTITUTIONAL QUESTI IBEING AVOIDED.
YOU ARE DOING THAT TO AVOID
HAVING TO DEAL WITH THE
CONSTITUTIONAL QUESTION.
WHAT IS THE CONSTITUTIONAL
QUESTION THAT IS BEING AVOIDED?
>> THIS IS JUST AN APPLICATION
OF THIS COURT ORDINARY
COTRUCTION OF CRIMINAL STATUTE
ATF THERE IS AN AVAILABLE
INTERPRETATION THAT WOULD AVOID
A SERIOUS CONSTITUTIONAL
QUESTION, THE COURT PREFERENCE
IS TO --
>> MY UNDERSTANDING IS THAT WHAT
IS BEING AVOIDED I
SITUATIOISHE QUESTION OF
WHETHER A FORMER PRESIDENT C
BE HELD CRIMINALLY LIABLE FOR
DOING THE ALLEGED ACT THAT IS
BEING ASSERTED IN THAT STATUTE
CONSISTENT WITH THE CONSTITUTION.
HAS GOTTEN ELEMENTS IN IT AND WE
ARE SAYING IF THIS STATUTE AND
THOSE ELEMENTS APPLIED TO THE
PRESIDENT'S CONDUCT IN THE
SITUATION, WE HAVE TO ANSWER THE
QUESTION IN THE PRESIDENT BE
HELD LIABLE CONSISTENT WITH THE
TITUTION FOR THAT?
>> THE FIRST STEP IN THE
ANALYSIS, THERE'S NO AMBIGUITY
IN THOSE.
SIMILAR WORDS, ANY PERSON
APPLIED TO GOVERNMENT OFFICIALS.
>> LET'S JUST ASSUME.
THAT WE ARE AVOIDING AG TO GET
CONSTITUTIONAL QUESTION IF WE DO
THAT IN THE ORDINARY CASE,ND
WHAT IS CONFUSING TO ME ABOUT
THIS CASE IS THAT WE ARE NOT
BEING ASKED TO AVOID THE
TUTIONAL QUESTION.
IN FACT, THE QUESTION OF WHETHER
OR NOT A PRESIDENT CAN BE HELD
LIABLE CONSISTENT WITH THE
CONSTITUTION OR DOES HE HAVE IMMUNITY IS THE QUESTION THAT IS
BEING PRESTETO US.
SO I DON'T UNDERSTAND HOW THE
CLEAR STA KIND OF ANALYSIS
EVEN WORKS.
IT SEEMS COMPLETELY TITLE LOGICAL TO FOR US TO ALL THE
ESIDENTS CANNOT BE PROSECUTED
UNR ANY CRIMINAL STATUTE
WITHOUT A CLEAR STATEMENT FROM
CONGRESS TO AVOID THE QUESTION
OF WHETHER OR NOT THE
CONSTITUTION ALLOWTH TO BE
PROSECUTED.
YOU HAVE TO HAVE A REASON,
RIGHT?
YOU HAVE TO HAVE A RATIONALE FOR
APPLYING FOR CLEAR STATEMENT
LE. >> THEREOULD HAVE TO BE SOME
RATIONALE THAT IS NOT EVIDENT IN
EITHER THE EXISTING DOCTRINE OR
THE TEXT.
JUST ONE DATA POINT FOR THE
COURT IN THIIN ABOUT HOW THE
CLEAR STATEMENT RULE WORKS, A
CASE ABOUT GRATUITIE AND THE
COURT IS PROBABLY FAMILIAWI,
JUSTICE SCALIA WROTE AN OPINION
FOR ANOUSOU IN WHICH HE
USED A HYPOTHETICAL ABOUT WHAT WOULD HAPPEN IF THE PRESIDENT
REIVED A SPORTS REPLICA JERSEY
AT A TYPICAL WHITE HOUSE EVENT,
ATIOLATE SECTION 201C?
THE COURT OFFERED A CONSTRUCTION
THAT IT HAD TO BE BECAUSE OF AN
OFFICIAL A TAVOID THAT
PROBLEM.
I THINK IF THERE WAS SUCH A
WELL-RECEIVED UNDERSTANDING THAT
PRESIDENTS ARE NOT INCLUDED IN
GENERAL FEDERAL CRIMINAL LAW
LESS A PRESIDENT IS
SPECIFICAMED, WHICH HE IS NOT, JUSTICE SCALIA WOULD HAVE
THOUGHT OF THAT AND SOME MEMBER
OF THE COURT WOULD HAVE REACTED.
AND NONE DID.
>> LET ME GO ON TO ASK ABOUT
WHAT YOU TAKE THE PARTITION'S
SION TO BE IN THICA.
BECAUSWEAD A LOT OF TALK ABOUT DRAWING THE LINEJUICE
KAVANAUGH, JUSTICE GORSUCH
SUGGESTED THAT WE SHOULD BE
INKING ABOUT FIRST, WE HAV
PRIVATE VS. OFFICIAL.
AND THEN WITHIN OFFICIAL WE HAVE
SOME THING THAT CORE ACTS VS.
HER ACTS AS WE TRY TO FIGURE
OUT AT WHAT LEVEL THE PRESIDENT
IS GNGO HAVE IMMUNITY.
BUT I TOOK THEIONERS
ARGUMENT IN THIS CASE NOT TO BE
INVITING US TO ENGAGE IN THAT
KIND OF ANALYSIS.
I THOUGHT HE WAS ARGUING THAT
ALCIAL ACTS DID IMMUNITY,
AND SO I DIDN'T UNDERSTAND US TO
BE HAVING TO DRILL DOWN ON WHICH
OFFICIAL ACTS DO.
MQUESTION IS WHY ISN'T IT
ENOUGH FOR THEURSES OF THIS
CASE, GIVEN WITH THE PETITIOR HAS ARGUED, TO JUST ANSWETH
QUESTION OF WHETHER ALL OFFICIAL
ACTS GET IMMUNITY?
>> THAT IS ENOUGH AND IF THE
COURT ANSWEDHAT QUESTION THE
WAY THAT THE GOVERNMENT HAS
SUBMTE THAT RESOLVES THE
CASE.
WA TO MAKE A CLARIFICATION
THAT I MAY HAVE LEFT THE COURT
WITH SOME UNCERTAINTY ABOUT.
E OFFICIAL ACT ANALYSIS THAT
MY FRIEND IS TALKING ABOUT IS
THE FITZGERALD VS. NIXON OUT OF
PERIMETER TEST WHICH IS
EXTREMELY PROTECTIVE T
PRESIDENT.
IT IS SAYING THAT EVERYTHING THE PRESIDENT DOES IS A TARGET FOR
LAWSUITS.
THAT IS NOT A GREAT THING AND
THEREFORE TY E ALL CUT OFF.
>> ANYTHING THAT IS OFFICIAL IN
THOUR PERIMETER IS NOT
SUECTO LIABILITY.
SO WE DON'T HAVE T GO
WELL, WE HAVE AN OFFICIAL, WHICH
WITHIN THAT MIGHT BE SUBJECT TO
LIABILITY?
NOT ON THE THEORY OF ABSOLUTE
IMMUNITY.
>> ON HIS THEORY, EVERYTHING IS
PROTECTIVE.
ON HOURS, THERE IS NO IMMUNITY
BUT THIS IS WHER I'VE DETROIT
DISTINCTION.
THERE ARE AS APPLY
CONSTITUTIONAL CHALLENGES THAT
YOU RUN THROUGH THE YOUNGSTOWN
FRAMEWORK AND ISOURT'S CUSTOMARY METHOD OF ANALYSIS AND
YOU DETERMI WTHER THERE IS
AN INFRINGEMEN ARTICLE TWO.
>> SO WHAT YOU'RE SAYING IS EVEN
IFE JECT THE ABSOLUTE IMMUNITY.
IT IS NOT AS THOUGH THE
PRESIDENT DOESN'T HA
OPPORTUNITY TO MAKE THE KIS
ARGUMENTS THAT ARISE AT THE
LEVEL OF THIS PARTICULAR ACT OR
ARTICULAR STATUTE AS A
PROBLEM IN RETROSPECT?
I THINK I HEAYOSAYING WE
SHOULD NOT BE TRYING TO, IN THE
ABSTRACT, SET TSE BOUNDARIES AHEAD OF TE A
FUNCTION OF THE BLANKET IMMUNITY
TO ALLOW EACH DELEGATION TO BE
BROUGHTND THEN YOU WOULD
DECIDE IN THAT CONTEXT?
>> YES, WITH THE ADDITIONAL NOTE
THAT PETITIONERS NEVER MADE THAT
ARGUMENT AND THINK IT WOULBE
UP TO A DISTRICT COURT TO DECIDE
WHETHER TO GO THAROE AT THIS
POINT IN THE LITIGATION.
YOU'VE PUT ALL OF YOUR EGGSN
THE ABSOLUTE IMMUNITY BASKET.
>> AND IWE SEE THE QUESTION
PRENTED IS BROADER THAN THAT
AND WE DO SAY LET'S ENGAGE WITH
CORE OFFICIAL AND NOT CORE AND
TRY TO FIGURE OUT THE LINE, IS
THIS THE RIGHT VEHICLE TO HAMMER
OUT THAT TEST?
I MEAN, I HAD UNDERSTOOD THA
MOST IF NOT ALL OF THE
ALGAONSER, THERE'S REALLY
PLAUSIBLE ARGUMENT THAT THEY
WOULD FALL INTO COURT VS. NOT
SU TT THEY ARE IMMUNE. >> WE DON'T THINK THERE ARE ANY
CORE ACTS THAT HAVE BEEN ALLEGED
IN THE INDICTMENTS THAT WOULD
OFF-LIMITS AS A MATTER OF
ARTICLE TWO. >> SO W ARE GOING TO DO THIS
KIND OF ANALYSIS, T TO FIGURE
OUT WHAT THE LINE IS, WE SHOULD
PROBABLY WAIT FOR A VEHICLE THAT
TUALLY PRESENTED IN A WAY THAT
ALLOWS US TO TEST THE DIFFERENT
SIDES OF THE STANDARD THAT WE
WOULD BE CREATING, RIGHT?
>> I DON'T SEE ANY NEED IN THE
-- THIS CASE THE COURT TO EMBARK
ON THAT ANALYSIS. >> THE FINAL SET OF QUESTIONS
TH IAVE HAS TO DO WITH WHAT
I DO TAK AS A VERY LEGITIMATE
CONCERNBOUT PROSECUTORIAL
ABUSE, ABOUT FUTURE PRESIDENTS
BEING TARGETED FOR THINGS THAT
THEY HAVE NEN OFFICE.
I TAKE THAT CONCERN, I THINK IT
IS A REAL THG.
BUT I WOND WTHER SOME OF IT
MIGHT ALSO BE MITIGATED BY THE
THATING
ADMINISTRATIONS HAVE A
SELF-INTEREST IN PROTECTING THE
PRESIDENCY, THAT THEY UNDERSTAND
THAT IF THEY GO AFTER THE
GUY, SOON THEY ARE GOING TO BE A
GUY AND THEY WILL HAVE
CREATED PRECEDENT THEY WILL BE
PROBLEMATIC.
SO I WONDER IF MY COMMENT ON
WHETHER SO OF THE CAUTION FROM
THE JU DEPARTMENT AND THE
PROSECUTORS AND WHATNOT COMES
FROM AN UNDERSTANDING THAT THEY
WILL SOON BE FPRESIDENT AS WELL.
ABSOLUTELY, AND I WOULD
LOCATE THIS AS A STRUCTURAL
ARGUMENT THAT IS BUILT INTO THE
CONSTITUTION ITSELF.
THE EXECUTIVE BRANCH, AS
COURT KNOWS, AS EXECUTIVE BRANCH
INTEREST THAT IS AT TIMES
ASSERTS OPPN TO
CONGRESS, SO THAT THE PROPER
FUNCTIONING OF THE PRESIDENT IS
PROTECTED, AND I BELIEVE THAT
AT VALUE WOULD BE OPERATIVE
AND USE OPERATIVE IN ANYTHING AS
THE MENTIS DISCHARGING A FORMER PRESIDENT TH CRIME.
>> AND I WOULD AO Y I THINK
IN ASK YOU TO COMME,
PRESIDENTS ARE CONCERNED ABOUT BEING INVESTIGATED AND
PROSECUTED, AND IT CHOSE TO SOME
NT THEIR ABILITY TO DO WHAT
THEY WANT IN OFFIC
THAT IS A CONCERN ON ONE SIDE.
BUT CAN YOU COMMENT ON THE
CONCERN ABOUT HAVING A PRESIDENT
UNBOUNDED WHILE IN OFFICE?
A PRESIDENT WHO KNOWS THAT HE
DOES NOT ULTIMATELY HAVE TO
FOLLOW T L BECAUSE THERE IS
NOTHING MORE THAN LICAL
ACCOUNTABILITY IN TERMS O
POLITICAL IMPEHMT?
FROM ULTIMATELY CORRUPTINOR
CONCEALING DOCUMENTS, FROM
SUPPORTING OTHERSMMIT
PERJURY, BRIBING WITNESSES OR
BLIC OFFICIALS.
IT GOES ON.
THE KNOWLEDGE THEYAVNO CRIMINAL ACCOUNTABILITY.
I SEE THAT AS A CONCERN THAT IS
AT LEAST EQUAL TO THE PRESIDENT
BEIN WORRIED, SO WRIED IN HIS
ABILITY TO FUNCTION.
SO COULD YOU PLEASE TALK ABOUT
THOSE COMPETING CONCERNS?
>> JUSTICE JACONI THINK IT
WOULD BE A CHANGE THAT NO
PRESIDENT HAS HAD OR HAS NEEDED.
I THINK WE HAVE ALSO HAD A
RFTLY FUNCTIONING SYSTE
THAT HAS SEEN OCCASIONAL EPISODES OF PRESIDENTIAL
MISCONDUCT.
E NIXON ERA IS A PARADIGMATIC
ON
THE INDICTMENT IN THIS CASE
ALLEGES ANOTHER.
FOR THE MOST PART, I BELIEVE
THAT THE LEGAL REGIME D E
CONSTITUTIONAL REGIME THAT WE
HAVE WORKS, AND TO ALTER IT
POSES MORE RISKS.
>> THANK YOU.
RE?
HAVNOTHING FURTHER, YOUR
HONOR.
>> THE CASE IS SUBMITTED.
>> THE HONORABLE COURT NOW
ADJOURNED UNTIL THURSDAY, THE
NINTH OF MAY AT 10:00.
ANNOUNCER: AND THE JUSTICES
WRAPPING UP ORAL ARGUMENTS IN
THE PRESIDENTIAL IMMUNITY CASE
CONCERNING FORMER PRESIDENT
DONALD TRUMP.
THE CASE WILL DETERMINE WHETHER
THE FORMER PRESIDENT WILL BE
ABLE TO AVOID CRIMINAL
PROSECUTION FOR HIS ALLEGED ROLE
IN TRYING TO OVERTURN THE
RESULTS OF THE 2020 ELECTION.
DURING THE HEARING, JUSTICES
CITED PREVIOUS CASES OF
PRESIDENTIAL IMMUNITY.
JUSTICE KAGAN HIGHLIGHTING THAT
THE FRAMERS OF THE CONSTITUTION
DID NOT ADD AN IMMUNITY CLAUSE
IN THE CONSTITUTION, AS POINTED
OUT BY CNN'S CAITLIN COLDITZ.
THIS EVENING AT 8:00 EASTERN, WE
WILL TAKE YOUR CALLS AND COMMENT
AND SHOW TODAY'S ORAL ARGUMENT.
TAKING A LOOK AT SOME OF THE
SIGHTS AND SOUNDS OUTSIDE THE
COURT WHERE PROTESTERS ARE
GATHERED.
♪
>> LET IT GO.
LET IT GO.
♪
>> C-SPAN'S CAMERAS OUTSIDE THE
SUPREME COURT.
WE ARE EXPECTING IF WE DO SEE OR
HEAR FROM SOME OF THE LAWYERS
WHO ARGUED THE CASE, WE WILL
MAKE SURE TO BRING YOU THEIR
REMARKS IN AN IMMUNITY CASE
DEALING WITH FORMER PRESIDENT
DONALD TRUMP.
THE QUESTION BEFORE THE COURT,
WHETHER MR. TRUMP CAN BE TRIED
ON CRIMINAL CHARGES THAT HE
CONSPIRED TO OVERTURN THE
RESULTS OF THE 2020 ELECTION.
JUST GETTING A LOOK OUTSIDE THE
COURT RIGHT NOW WITH SOME OF THE
ONLOOKERS THAT WERE PROTESTERS
AS WELL.
THE OUTCOME OF THIS WILL
DETERMINE NOT ONLY WHETHER
DONALD TRUMP'S TRIAL IN
WASHINGTON, D.C. BEFORE A U.S.
DISTRICT COURT CAN GO FORWARD,
BUT ALSO WHETHER THE FORMER
PRESIDENT TRIALS IN FLORIDA AND GEORGIA CAN PROCEED.
AGAIN, WE COULD SEE LAWYERS HERE WHO ARGUED THE CASE TO REPORTERS
OUTSIDE THE COURT.
WATCHING LIVE COVERAGE HERE ON C-SPAN.
♪
>> VOTE DONALD TRUMP!
♪
>> JUST GETTING A LOOK AT THE
SIGHTS AND SOUNDS ISAIAH THE
SUPREME COURT AFTER JUSTICES
HEARD TRUMP V. UNITED STATES
LOOKING AT IMMUNITY CLAIMS BY
FORMER PRESIDENT DONALD TRUMP AND THIS EVENING AT 8:00 EASTERN
WILL TAKE YOUR CALLS AND
COMMENTS AND WE WILL SHOW
TODAY'S ORAL ARGUMENTS IN ITS
ENTIRETY.
THE FORMER PRESIDENT WAS A NEW
YORK CRIMINAL COURT FOR HIS HUSH MONEY TRIAL DECISION AS TO
WHETHER OR NOT HE VIOLATED THE COURT ISSUED GAG ORDER BEING
ANNOUNCED TODAY. SHORTLY BEFORE COURT STARTED,
THE FORMER PRESIDENT MET WITH SUPPORTERS AT A CONSTRUCTION
SITE AND TALKED ABOUT THE
ARGUMENT AT THE SUPREME COURT
TODAY.
>>