1 00:00:42,000 --> 00:00:47,000 >> M SOUR? 2 00:00:48,000 --> 00:00:52,000 >> MR. CHIEF JUSTICEND MAY IT 3 00:00:52,000 --> 00:00:56,000 PLEASE THE COURT, WITHOUT 4 00:00:56,000 --> 00:00:57,000 RESIDENTIAL IMMUNITY FROM 5 00:00:57,000 --> 00:00:58,000 CRIMINAL PROSECUTION, ERE CAN 6 00:00:58,000 --> 00:01:02,000 BE NO PRESIDENCY AS WE KNOW IT. 7 00:01:02,000 --> 00:01:04,000 FOR 200 34 YEARS OF AMERICAN 8 00:01:04,000 --> 00:01:06,000 HISTY, NO PRESIDENT WAS EVER 9 00:01:06,000 --> 00:01:09,000 PROSECUTED FOR HIS OFFICIAL ACT. 10 00:01:09,000 --> 00:01:12,000 THE FRAMERS OF OURONSTITUTION 11 00:01:12,000 --> 00:01:14,000 FEUDED ENERGETIC EXECUTIVE AS 12 00:01:14,000 --> 00:01:16,000 ESSENTIAL SECURING LIBERTY. 13 00:01:16,000 --> 00:01:17,000 IF A PRESIDENT CAN BE CHARGED, 14 00:01:17,000 --> 00:01:21,000 PUT ON TRIAL AND IN PRISON FOR 15 00:01:21,000 --> 00:01:22,000 HIS MOST CONTROVERSIAL DECIO 16 00:01:22,000 --> 00:01:23,000 AS SOON AS HE LEAVES OFFICE, 17 00:01:23,000 --> 00:01:26,000 THAT LOOMING THREAT WILL DISTORT 18 00:01:26,000 --> 00:01:28,000 THE PRESIDENT'S DECIOMAKING 19 00:01:28,000 --> 00:01:30,000 PRECISELY WHENOLAND FEARLESS 20 00:01:30,000 --> 00:01:32,000 ACTION IS MOST NEEDED. 21 00:01:32,000 --> 00:01:34,000 EVERY CURRENT PRESIDENT WILL 22 00:01:34,000 --> 00:01:37,000 FACE THE FACT OF BLACKMAIL AND 23 00:01:37,000 --> 00:01:38,000 TOION BY HIS POLITICAL RIVALS WHILE HE IS STILL IN 24 00:01:38,000 --> 00:01:43,000 OFFICE 25 00:01:43,000 --> 00:01:46,000 THE IMICIONS OF THE COURT'S DECISION HERE EXTEND FAR BEYD 26 00:01:46,000 --> 00:01:50,000 THE FACTS OF THIS CASE. 27 00:01:50,000 --> 00:01:52,000 COULD PRESIDENT GEORGE W.USH 28 00:01:52,000 --> 00:01:54,000 HAVE BEEN SENT TO PRISON FOR 29 00:01:54,000 --> 00:01:55,000 OBSTRUCTING AN OFFICIAL 30 00:01:55,000 --> 00:01:58,000 OCDING OR ALLEGEDLY LYING TO 31 00:01:58,000 --> 00:02:01,000 CONGRESS TO INDUCE WAR IN IRAQ? 32 00:02:01,000 --> 00:02:02,000 COULD PRESIDENT OBAMA BE CHARGED 33 00:02:02,000 --> 00:02:04,000 WITH MURDER FOR KILLING U.S. 34 00:02:04,000 --> 00:02:08,000 CITIZENS ABROAD BY DRONE STRIKE? 35 00:02:08,000 --> 00:02:10,000 COULD PRIDT BIDEN SOMEDAY BE 36 00:02:10,000 --> 00:02:13,000 CHARGED WIT UNLAWFULLY INDUCING 37 00:02:13,000 --> 00:02:14,000 MIANTS TO ENTER THE COUNTRY 38 00:02:14,000 --> 00:02:17,000 LEGALLY FOR HIS BORDER POLICY. 39 00:02:17,000 --> 00:02:19,000 E ANSWER TO ALL THESE 40 00:02:19,000 --> 00:02:21,000 QUESTIS NO. 41 00:02:21,000 --> 00:02:22,000 PROSECUTING THE PRESIDT R 42 00:02:22,000 --> 00:02:25,000 OFFICIAL ACTS IS AN INNOVATION 43 00:02:25,000 --> 00:02:26,000 WITH NO FOOTHOLD IN HISTORY OR 44 00:02:26,000 --> 00:02:29,000 TRADITION AND INCOMPATIBLE WITH 45 00:02:29,000 --> 00:02:31,000 OUR CONSTITUON STRUCTURE. 46 00:02:31,000 --> 00:02:33,000 THE ORIGALEANING OF THE 47 00:02:33,000 --> 00:02:34,000 EXECUTIVE VESTING CLAE,HE 48 00:02:34,000 --> 00:02:38,000 FRAMERS UNDERSTANDING AND 49 00:02:38,000 --> 00:02:39,000 UNBROKEN HISTORIL ADITION 50 00:02:39,000 --> 00:02:41,000 SPANNING 200 YRS AND POLICY 51 00:02:41,000 --> 00:02:42,000 COIDATIONS ROOTED IN THE 52 00:02:42,000 --> 00:02:44,000 SEPARATION OF POWERS ALL COUNSEL 53 00:02:44,000 --> 00:02:46,000 AGAINST IT. 54 00:02:46,000 --> 00:02:47,000 I WELCOME THE COURTS QUESTIONS. 55 00:02:47,000 --> 00:02:52,000 >> MR.SAUER, TO YOUR LAST POINT 56 00:02:52,000 --> 00:02:55,000 KOBA COULD YOU BE MORE PRECISE? 57 00:02:55,000 --> 00:03:00,000 >> IT'S OTED IN THE VTING 58 00:03:00,000 --> 00:03:02,000 CLAUSE. >> HOW DOES THAT HAPPEN? 59 00:03:02,000 --> 00:03:07,000 >> THE SOURCE OF IT IS THAT THE 60 00:03:10,000 --> 00:03:11,000 EXUTE VESTING CLAUSE DOES 61 00:03:11,000 --> 00:03:14,000 NOT INCLUDE ONLY EXECUTIVE 62 00:03:14,000 --> 00:03:16,000 POWERS LAID OUT THERE AND T 63 00:03:16,000 --> 00:03:17,000 ENCOMPASS E POWERS ORIGINALLY UNDERSTOOD TO BE 64 00:03:17,000 --> 00:03:20,000 INCLUDED THEREIN AND MARBURY 65 00:03:20,000 --> 00:03:21,000 AGAINST DIN ITSELF PROVIDES 66 00:03:21,000 --> 00:03:25,000 EVIDENCE THIS MEANT COMMUNITY 67 00:03:25,000 --> 00:03:26,000 THAT ARE PRICED THIS THAT 68 00:03:26,000 --> 00:03:27,000 AFFECTS THE PRESIDENT'OFFICIAL 69 00:03:27,000 --> 00:03:29,000 ACTS FROM SCRUTINY SITTING IN 70 00:03:29,000 --> 00:03:33,000 JUDGMENT OF THE ARTICLES. 71 00:03:33,000 --> 00:03:34,000 THAT MATCHES THE ORIGINAL 72 00:03:34,000 --> 00:03:35,000 UNDETAING OF THE EXECUTIVE 73 00:03:35,000 --> 00:03:37,000 ORDER. >> HOW EXACTLY WOULD WE 74 00:03:37,000 --> 00:03:41,000 DETERMINE WHAT AN OFFICIAL ACT 75 00:03:41,000 --> 00:03:44,000 IS? >> I POINT THE CARD TO TWO CASES 76 00:03:44,000 --> 00:03:46,000 FOR THAT. 77 00:03:46,000 --> 00:03:49,000 FITZGERALD AGAINST NIXON IS THE 78 00:03:49,000 --> 00:03:53,000 BEST GUIDANCE THE COURT GIVES, 79 00:03:53,000 --> 00:03:57,000 THE OUTER PERIMETER TEST AND THE 80 00:03:57,000 --> 00:03:59,000 COURT AND GAZING OUT ANALYSIS 81 00:03:59,000 --> 00:04:01,000 THAT LOOK AT THE LEVEL OF 82 00:04:01,000 --> 00:04:02,000 SPECIFICITY AT WHICH THE ACTS 83 00:04:02,000 --> 00:04:03,000 ARE DESCRIBED AND THAT CASE 84 00:04:03,000 --> 00:04:04,000 WHICH WAS A CIVIL CASE. 85 00:04:04,000 --> 00:04:09,000 >> LET'S SAY THE OFFICIAL ACT IS 86 00:04:10,000 --> 00:04:11,000 APPOINTING AMBASSADORS IN THE 87 00:04:11,000 --> 00:04:13,000 PRESIDENT APPOINTS A PARTICULAR 88 00:04:13,000 --> 00:04:14,000 INDIVIDUAL TO THE COUNTRY BUT 89 00:04:14,000 --> 00:04:16,000 IT'S IN EXCHANGE FOR A BRIBE AND 90 00:04:16,000 --> 00:04:17,000 SOMEBODY SAYS I WILL GIVE YOU $1 91 00:04:17,000 --> 00:04:20,000 MILLION IF I AM MADE AMBASSADOR. 92 00:04:20,000 --> 00:04:21,000 HOW Y ANALYZE THAT? 93 00:04:21,000 --> 00:04:25,000 >>HAWOULD FOLLOW THIS 94 00:04:25,000 --> 00:04:28,000 DISCUSSIONS I BREWSTER THAT 95 00:04:28,000 --> 00:04:30,000 BRERY IS NOT AN OFFICIAL ACT 96 00:04:30,000 --> 00:04:32,000 WHICH MATCHES A COMMON-LAW BACKGROUND. 97 00:04:32,000 --> 00:04:37,000 THE WAY THE COURT DISTINGUISHED 98 00:04:38,000 --> 00:04:42,000 IS THESERE NOT OFFICIAL ACTS. 99 00:04:42,000 --> 00:04:45,000 IT WOULD BE ESSENTIALLY 100 00:04:45,000 --> 00:04:46,000 UNRESTRICTED WILL BEFORE THE 101 00:04:46,000 --> 00:04:49,000 CONGRE. >> ACCEPTING THE BRIBE IS NOT AN 102 00:04:49,000 --> 00:04:50,000 OFFICIAL ACT BUT APPOINTING AN 103 00:04:50,000 --> 00:04:52,000 AMBASSADOR CERTAINLY WITHIN THE 104 00:04:52,000 --> 00:04:53,000 OFFICIAL RESPONSIBILITY OF THE 105 00:04:53,000 --> 00:04:57,000 PRESIDENT. 106 00:04:57,000 --> 00:04:58,000 HOW DOES YOUR OFFICIAL ACTS OR 107 00:04:58,000 --> 00:05:01,000 THE OFFICIAL ACT ORDER OR 108 00:05:01,000 --> 00:05:04,000 BOUNDARY COME INTO PLAY AND IT'S 109 00:05:04,000 --> 00:05:07,000 GOING TO BE OFFICIAL ASSUMING 110 00:05:07,000 --> 00:05:10,000 E ESIDENT IS INNOCENT. 111 00:05:10,000 --> 00:05:11,000 THQUTION IS WHETHER HE WILL 112 00:05:11,000 --> 00:05:12,000 BE FOUND INNOCENT OR GLT 113 00:05:12,000 --> 00:05:16,000 >> AGAIN, I THINK BRUCE VERSUS 114 00:05:16,000 --> 00:05:18,000 JOHNSON IN A SLIGHTLY DIFFERENT 115 00:05:18,000 --> 00:05:21,000 CONTEXT. 116 00:05:21,000 --> 00:05:23,000 THE INDICTMENT HAS TO BE 117 00:05:23,000 --> 00:05:24,000 EXPUNGED, ALL THE IMMUNE 118 00:05:24,000 --> 00:05:27,000 OFFICIAL ACTS DETERMINE WHAT'S 119 00:05:27,000 --> 00:05:28,000 OFFICIAL AND WHAT'S NOT OFFICIAL. 120 00:05:28,000 --> 00:05:30,000 >>OU SAY WE ARE PROSECUTING 121 00:05:30,000 --> 00:05:32,000 BECAUSE YOU ACCEPTED $1 MILLION 122 00:05:32,000 --> 00:05:35,000 AS -- ARE YOU SUPPOSED TO NOT 123 00:05:35,000 --> 00:05:38,000 SAY WHAT IT'S FOR BECAUSE WITHIN 124 00:05:38,000 --> 00:05:39,000 THE PRESIDE'S OFFICIAL DUTIES? 125 00:05:39,000 --> 00:05:42,000 >> THERE WOULD HAVE TO BE AN 126 00:05:42,000 --> 00:05:43,000 INDIVIDUAL SOURCE OF EVIDENCE 127 00:05:43,000 --> 00:05:45,000 R THAT. THIS INDICTMENT CHAESHAT 128 00:05:45,000 --> 00:05:50,000 THIS COURT DESCRIBES AS UN TO 129 00:05:53,000 --> 00:05:55,000 SCRIPTABLE POWERS BY THE 130 00:05:55,000 --> 00:05:57,000 PRIDT. 131 00:05:57,000 --> 00:06:00,000 THEY ARE PURPORTING TO REGULATE 132 00:06:00,000 --> 00:06:03,000 THE EXERCISE OF THE PRESIDENT, 133 00:06:03,000 --> 00:06:06,000 THINGS LIKE HIS ABILITY TO SPEAK DIRECTLY TO THE AMERICAN PUBLIC 134 00:06:06,000 --> 00:06:08,000 AND CORE EXERCISES OF HIS 135 00:06:08,000 --> 00:06:11,000 AUTHORITY UNDER THE REMMENDATIONS CLAUSE. 136 00:06:11,000 --> 00:06:12,000 THE MEASURES HE THINKS NESRY 137 00:06:12,000 --> 00:06:14,000 AND EXPEDIENT. 138 00:06:14,000 --> 00:06:16,000 YOU HAVE AN INDICTMENT OF THIS 139 00:06:16,000 --> 00:06:17,000 CASE THAT GOES OF THE HEARTLAND 140 00:06:17,000 --> 00:06:19,000 OF THE PRESIDENT'S POWERS. 141 00:06:19,000 --> 00:06:20,000 IT ALLEGES A SERIES OF OFFICIAL 142 00:06:20,000 --> 00:06:21,000 TS AND TRIES TO TIE THEM 143 00:06:21,000 --> 00:06:25,000 TOGETHER BY SAYING THERE WAS A 144 00:06:25,000 --> 00:06:26,000 PRIVATE PURPOSE IN THAT CASE AND 145 00:06:26,000 --> 00:06:28,000 THAT'S THE SITUATION WHICH COULD 146 00:06:28,000 --> 00:06:30,000 BE - 147 00:06:30,000 --> 00:06:33,000 >> IT HAS TO BE ALLEGED BUT IT 148 00:06:33,000 --> 00:06:38,000 HAS TO BE PROVEN. 149 00:06:38,000 --> 00:06:41,000 IT'S A CONCEPT LONG VIEWED AS AN 150 00:06:41,000 --> 00:06:42,000 -- IS APPROPRIATE THAT THERE IS 151 00:06:42,000 --> 00:06:44,000 SOMETHING SO FUNDAMENTALLY EVIL 152 00:06:44,000 --> 00:06:49,000 THAT THEY HAVE TO BE PROTECTED AGNST. 153 00:06:49,000 --> 00:06:54,000 I THINK AND YOUR AWER BELOW, I 154 00:06:54,000 --> 00:06:57,000 WILL GIVE YOU A CHANCE TO SAY IF 155 00:06:57,000 --> 00:06:59,000 YOU STAY BY IT -- IF THE 156 00:06:59,000 --> 00:07:04,000 PRESIDENT DECIDES THAT HIS RIVAL 157 00:07:04,000 --> 00:07:07,000 IS A CORRUPT PSOAND HE 158 00:07:07,000 --> 00:07:10,000 ORDERS THE MILITARY OR ORDER 159 00:07:10,000 --> 00:07:13,000 SOMEONE TO ASSASSINATE HIM, IS 160 00:07:13,000 --> 00:07:16,000 THAT WITHIN HIS OFFICIAL ACTS 161 00:07:16,000 --> 00:07:17,000 R WHICH HE CAN GET IMMUNITY? 162 00:07:17,000 --> 00:07:21,000 >> THAT COULD WELL BE AN 163 00:07:21,000 --> 00:07:24,000 FIAL ACT. >> ICOD AND HE'S DOING IT 164 00:07:24,000 --> 00:07:29,000 FOPERSONAL REASONS. HE'S NOT DOING IT LIKE PRESIDENT 165 00:07:30,000 --> 00:07:31,000 OBAMA'S ALLEGED TO HAVE DONE IT 166 00:07:31,000 --> 00:07:33,000 TO PROTECT THE COUNTRY FM 167 00:07:33,000 --> 00:07:34,000 TERRORIST. 168 00:07:34,000 --> 00:07:36,000 HE'S DOING IT FOR PERSONAL GAIN. 169 00:07:36,000 --> 00:07:39,000 ISN'T THAT THE NATURE OF THE 170 00:07:39,000 --> 00:07:42,000 ALLEGATIONS HERE? THAT HE'S NOT DOING THEM -- 171 00:07:42,000 --> 00:07:46,000 THESE ACTS FOR FURTHAN OF AN 172 00:07:46,000 --> 00:07:49,000 OFFICIAL RESPONSIBILITY. 173 00:07:49,000 --> 00:07:50,000 HE'DOING IT FOR PERSONAL GAIN. 174 00:07:50,000 --> 00:07:54,000 >> I AGREE WITH THE 175 00:07:54,000 --> 00:07:57,000 CHARACTERIZATION IN THE INDICTMENT AND THAT CONFIRMS 176 00:07:57,000 --> 00:07:58,000 BECAUSE THE CHARACTERIZATION IS 177 00:07:58,000 --> 00:07:59,000 THAT THE SERIES OF OICL ACTS 178 00:07:59,000 --> 00:08:02,000 -- >> COMMUNITY SAYS EVEN IF YOU 179 00:08:02,000 --> 00:08:06,000 DID IT FOR PEON GAIN, WE 180 00:08:06,000 --> 00:08:10,000 WILL HOLD YOU RESPONSIBLE. 181 00:08:10,000 --> 00:08:15,000 HOW COULD THAT BE? >> THAT'S AN EXTREMELY STRONG 182 00:08:15,000 --> 00:08:16,000 CONTRADICTION OF THIS CASE. 183 00:08:16,000 --> 00:08:19,000 >> WE GO BACK TO JUSTICE 184 00:08:19,000 --> 00:08:20,000 THOMAS'S QUESTION WHICH IS WHERE 185 00:08:20,000 --> 00:08:24,000 DO TT COME FROM? 186 00:08:24,000 --> 00:08:26,000 THERE ARE AMICA WHO TELL US THE 187 00:08:26,000 --> 00:08:28,000 FOUNDERS ACTUALLTAED ABOUT 188 00:08:28,000 --> 00:08:30,000 WHETHER TO GRANT IMMUNITTOHE 189 00:08:30,000 --> 00:08:31,000 PRESIDENT. 190 00:08:31,000 --> 00:08:36,000 IN FACT, THEY HAD STE 191 00:08:36,000 --> 00:08:37,000 CONSTITUTIONS THAT GRANTED SOME 192 00:08:37,000 --> 00:08:38,000 CRIMINAL IMMUNITY TO GOVERNORS. 193 00:08:38,000 --> 00:08:43,000 AND YETH DIDN'T TAKE IUP 194 00:08:43,000 --> 00:08:45,000 INSTEAD, TY PASSED AN 195 00:08:45,000 --> 00:08:46,000 IMPEACHMENT CLAUSE THAT 196 00:08:46,000 --> 00:08:47,000 BASICALLY SAYS YOU CANNOT REMOVE 197 00:08:47,000 --> 00:08:52,000 THE PRESIDENT FROM OFFICE EXCEPT 198 00:08:53,000 --> 00:08:56,000 BY A TRIAL IN THE SENATE BUT YOU 199 00:08:56,000 --> 00:09:00,000 CAN IMPEACH HIM AFTER. 200 00:09:00,000 --> 00:09:02,000 OROU CAN IMPOSE CRIMINAL 201 00:09:02,000 --> 00:09:05,000 LIABILITY. WE WOULD BE CATING A SITUATION 202 00:09:05,000 --> 00:09:08,000 IN WHICH WE WOULD BE SAYING, 203 00:09:08,000 --> 00:09:09,000 THISS AT YOU ARE ASKING US 204 00:09:09,000 --> 00:09:12,000 TO SAY WHICH IS THAT A PRESIDENT 205 00:09:12,000 --> 00:09:15,000 IS ENTITLED NOT TO MAKE A 206 00:09:15,000 --> 00:09:19,000 MISTAKE BUT MORE ANHAT. 207 00:09:19,000 --> 00:09:21,000 THE PRESIDENT IS ENTITLED FOR 208 00:09:21,000 --> 00:09:25,000 TOTAL PERSONAL GAIN TO USE THE 209 00:09:25,000 --> 00:09:29,000 TRAPPINGS H OICE, THAT'S 210 00:09:29,000 --> 00:09:30,000 WHAT YOU ARE TRYING TO GET US TO 211 00:09:30,000 --> 00:09:33,000 HOPE. 212 00:09:33,000 --> 00:09:34,000 WITHOUT FACING CRIMINAL LIABILITY. 213 00:09:34,000 --> 00:09:37,000 >> I WOULD SAY THREE THINGS IN 214 00:09:37,000 --> 00:09:39,000 RESPONSE. 215 00:09:39,000 --> 00:09:40,000 THE DOCTRINE THAT IMMUNITY DOES 216 00:09:40,000 --> 00:09:43,000 NOT TURN ON ALLEGLYROPER 217 00:09:43,000 --> 00:09:45,000 MOTIVATION IS SOMETHING THIS 218 00:09:45,000 --> 00:09:47,000 COURT HAS REAFFIRMED IN AT LEAST 219 00:09:47,000 --> 00:09:51,000 NINE OR 10 -- >> ABSOLUTE IMMUNITY BUT 220 00:09:51,000 --> 00:09:52,000 QUALIFIED IMMUNITY SAYS WHATEVER 221 00:09:52,000 --> 00:09:56,000 ACT YOU TAKE HASO BE WITHIN 222 00:09:56,000 --> 00:09:57,000 WHAT A REASONABLE PERSON WOULD DO. 223 00:09:57,000 --> 00:10:02,000 I'M HAVING A HARD TIME THINKING 224 00:10:02,000 --> 00:10:04,000 THAT CREATING FALSE DOCUMENTS 225 00:10:04,000 --> 00:10:07,000 THAT SUBMITTING FAE DOCEN, 226 00:10:07,000 --> 00:10:08,000 THAT ORDERING THE ASSSATION 227 00:10:08,000 --> 00:10:12,000 OF AIV, ACCEPTING A BRIBE 228 00:10:12,000 --> 00:10:13,000 AND COUNTLESS OTHER LAWS THAT 229 00:10:13,000 --> 00:10:15,000 COULD BE BROKEN FOR PERSONAL 230 00:10:15,000 --> 00:10:17,000 GAIN, THAT ANYONE WOULD SAY THAT 231 00:10:17,000 --> 00:10:20,000 IT WOULD BE REASONABLE FOR 232 00:10:20,000 --> 00:10:21,000 PRESIDENT OR ANY PUBLIC OFFICIAL 233 00:10:21,000 --> 00:10:22,000 TO DO THAT. 234 00:10:22,000 --> 00:10:27,000 >> THIS WAS ANSWED VERY 235 00:10:28,000 --> 00:10:29,000 PERSUASIVELY IN FITZGERALD THAT 236 00:10:29,000 --> 00:10:31,000 THIS PARTICULAR ACT WOULD B 237 00:10:31,000 --> 00:10:33,000 DONE FOR AN UNLAWFUL PURPOSE OR 238 00:10:33,000 --> 00:10:35,000 WASNLOVED LAWFUL COULD BE IN 239 00:10:35,000 --> 00:10:36,000 EVERY CASE AND THEREFORE IF THA 240 00:10:36,000 --> 00:10:39,000 WAS THE DOCTRINE THAT THE 241 00:10:39,000 --> 00:10:42,000 ALLEGAONF IMPROPER PURPOSES WHAT DEPRIVES THE OBJECTIVE A 242 00:10:42,000 --> 00:10:44,000 OR OF IMMUNITY THAT IMMUNITY 243 00:10:44,000 --> 00:10:46,000 WOULD HAVE N PURCHASE AND 244 00:10:46,000 --> 00:10:47,000 THAT'S REFLECTED IN MANY CASES. 245 00:10:47,000 --> 00:10:51,000 >'THE WORK OF THE 246 00:10:51,000 --> 00:10:55,000 IMPROPER MOTIVE AT LEAST IN THE 247 00:10:55,000 --> 00:10:56,000 ABSOLUTE IMMCONTEXT TO 248 00:10:56,000 --> 00:10:58,000 TELL UWHAT OUR OFFICIAL ACTS 249 00:10:58,000 --> 00:11:00,000 AND WHATREOT? 250 00:11:00,000 --> 00:11:02,000 I UNDERSTOOD THAT EVEN -- FIRST 251 00:11:02,000 --> 00:11:06,000 OF ALL, YOUR ASK IS YOUR 252 00:11:06,000 --> 00:11:07,000 PRINCIPAL POSITION. 253 00:11:07,000 --> 00:11:09,000 YOU WANT THEAMKIND OF 254 00:11:09,000 --> 00:11:11,000 DOCTRINE WE'VE APPLIED IN OTHER 255 00:11:11,000 --> 00:11:12,000 CONTEXTS WHEN YOU SAY IN 256 00:11:12,000 --> 00:11:14,000 OFFICIAL HAS ABSOLUTE IMMUNITY. 257 00:11:14,000 --> 00:11:15,000 MY UNDERSTANDING IS WHEN WE SA 258 00:11:15,000 --> 00:11:17,000 THAT, WE MEAN FOR THEIR OFFICIAL 259 00:11:17,000 --> 00:11:18,000 ACTS. 260 00:11:18,000 --> 00:11:19,000 IS THAT RIGHT? 261 00:11:19,000 --> 00:11:20,000 >> YES. 262 00:11:20,000 --> 00:11:24,000 >> SO ANY OFFICIAL ACTS IN THAT 263 00:11:24,000 --> 00:11:27,000 WORLD, THE REAL DECISION-MANG 264 00:11:27,000 --> 00:11:29,000 FROM A COURT STANDPOINT IS 265 00:11:29,000 --> 00:11:30,000 WHETHER OR NOT SOMETHI IAN 266 00:11:30,000 --> 00:11:31,000 OFFICIAL ACT OR NOT, CORRECT? 267 00:11:31,000 --> 00:11:33,000 >> TT'S AN IMPORTANT 268 00:11:33,000 --> 00:11:34,000 DETERMINATION. 269 00:11:34,000 --> 00:11:37,000 >>T'S THE DETERMINATION IN 270 00:11:37,000 --> 00:11:38,000 THABSOLUTE IMMUNITY WORLD 271 00:11:38,000 --> 00:11:39,000 BECAUSE OF YOU DETERMINE IT'S AN 272 00:11:39,000 --> 00:11:41,000 FIAL ACT, THEN THE PRINCIPLE 273 00:11:41,000 --> 00:11:42,000 IS YOU GET IMMUNITY FO IT, 274 00:11:42,000 --> 00:11:44,000 CORRECT? >> THAT IS CORRECT. 275 00:11:44,000 --> 00:11:49,000 >> MY QUESTION IS HOW DO YOU 276 00:11:50,000 --> 00:11:52,000 DETERMINE OR MAYBE JUSTICE 277 00:11:52,000 --> 00:11:54,000 THOMAS, HOW D DETERMINE 278 00:11:54,000 --> 00:11:56,000 WHAT'S OICIAL ACT? WE TALK ABOUT THE KINDS OF 279 00:11:56,000 --> 00:11:58,000 SCENARIOS JUSTICE SOTOMAYOR 280 00:11:58,000 --> 00:11:59,000 BROUGHTP,NE COULD SAY THAT 281 00:11:59,000 --> 00:12:01,000 WHEN THE PRESIDENT IS USING THE 282 00:12:01,000 --> 00:12:03,000 TRAPPINGS OF HIS OFFICE TO 283 00:12:03,000 --> 00:12:07,000 ACHIE PERSONAL GAIN, HE'S 284 00:12:07,000 --> 00:12:10,000 ACTUALLY NOT ACTING OFFICIALLY 285 00:12:10,000 --> 00:12:12,000 EVEN AT THE DOCTRINE WAS 286 00:12:12,000 --> 00:12:13,000 ABSOLUTE IMMUNITY SO WHAT DO YOU 287 00:12:13,000 --> 00:12:18,000 SAY ABOUT THAT? >> TO THE LAST POINT, TT 288 00:12:18,000 --> 00:12:19,000 ALLEGATION THAT THIS WAS 289 00:12:19,000 --> 00:12:20,000 MOTIVATED BY AN IMPROPER PRIVATE 290 00:12:20,000 --> 00:12:21,000 PURPOSE COULD BE MADE IN EVERY 291 00:12:21,000 --> 00:12:22,000 SINGLE CASE. 292 00:12:22,000 --> 00:12:24,000 >>NDERSTAND THAT BUT IT 293 00:12:24,000 --> 00:12:26,000 WOULD HAVE TO BE MADE JUST EVEN 294 00:12:26,000 --> 00:12:30,000 IF WE HAD THE DOCTRINE OF 295 00:12:30,000 --> 00:12:31,000 ABSOLUTE IMMUNITY, THAT SAME 296 00:12:31,000 --> 00:12:32,000 LEGATION AND THE FACTS RELATED 297 00:12:32,000 --> 00:12:34,000 TO IT WOULD COME IN BECAUSE TH 298 00:12:34,000 --> 00:12:36,000 PERSON WOULD BE ARGUING THAT HE 299 00:12:36,000 --> 00:12:38,000 WAS NOT ACTING IN HIS OFFICIAL 300 00:12:38,000 --> 00:12:40,000 CAPACITY AND NOT DOING SOMETHING 301 00:12:40,000 --> 00:12:42,000 OFFIALHE WAS DOING IT 302 00:12:42,000 --> 00:12:47,000 PERSON, RRECT? >> AEE BUT THE OBJECTIVE -- 303 00:12:47,000 --> 00:12:48,000 THE POINT I WOULD MAKE IS THAT 304 00:12:48,000 --> 00:12:51,000 IN FITZGERALD, THEY EMPHASIZE 305 00:12:51,000 --> 00:12:55,000 THAT WOULD RESULT IN AN 306 00:12:55,000 --> 00:12:56,000 INTRUSIVE DISCUSSION OR DETEINION OF THE PRESIDENTS 307 00:12:56,000 --> 00:12:57,000 PERSONAL MOTIVES EVERY OFFICIAL 308 00:12:57,000 --> 00:12:59,000 ACT. 309 00:12:59,000 --> 00:13:03,000 THIS IS NOT JUST IN THE CASE OF >> ANOTHER QUICK QSTION BEFORE 310 00:13:03,000 --> 00:13:05,000 MY COLLEAGUES TAKE IT OVER -- 311 00:13:05,000 --> 00:13:08,000 AT THE BEGINNING OF YOUR 312 00:13:08,000 --> 00:13:10,000 ANALYSIS WHEN YOU'RE GIVING YOUR 313 00:13:10,000 --> 00:13:11,000 OPENING STATEMENT, YOU WERE 314 00:13:11,000 --> 00:13:15,000 TALKING ABOUT, YOU SUGGESTED THE 315 00:13:15,000 --> 00:13:17,000 LAST OF IMMUNI A THE 316 00:13:17,000 --> 00:13:19,000 POSSIBILITY OF PROSECUTION IN 317 00:13:19,000 --> 00:13:20,000 THE PRIDTIAL CONTACTS IS 318 00:13:20,000 --> 00:13:22,000 LIKE AN INNOVATION. 319 00:13:22,000 --> 00:13:23,000 I TOOD TO BE THE STATUS 320 00:13:23,000 --> 00:13:27,000 QUO. IERSTOOD THAT EVERY 321 00:13:27,000 --> 00:13:28,000 PRESIDENT FROM THE BEGINNING OF 322 00:13:28,000 --> 00:13:31,000 TIME ESSENTIALLY HAS UNDERSTOOD 323 00:13:31,000 --> 00:13:34,000 THAT THERE WAS A THREAT OF 324 00:13:34,000 --> 00:13:35,000 PROSECUTION IF FOR NO OTHER 325 00:13:35,000 --> 00:13:36,000 REASON THAN THE NSTUTION 326 00:13:36,000 --> 00:13:37,000 SUGGESTS THEY CAN BE PROSECUTED 327 00:13:37,000 --> 00:13:41,000 AFTER IMPEAME, THAT THE 328 00:13:41,000 --> 00:13:42,000 OFFICE OF COUNSEL HAD SAID 329 00:13:42,000 --> 00:13:45,000 FOREVER THAT PRESIDENTS ARE 330 00:13:45,000 --> 00:13:46,000 AMENABLE TO A THREAT OF 331 00:13:46,000 --> 00:13:47,000 PROSECUTION AND THEY HAVE 332 00:13:47,000 --> 00:13:48,000 CONTINUED TO FUNCTION AND DO 333 00:13:48,000 --> 00:13:51,000 THEIR JOB AND DO ALL THE THINGS 334 00:13:51,000 --> 00:13:53,000 PRESIDENTS DO. IT SEEMS TMEHAT YOU ARE 335 00:13:53,000 --> 00:13:56,000 ASKING NOW FOR A CHANGE IN WHAT 336 00:13:56,000 --> 00:13:57,000 THE LAW IS RELATED TO IMMUNITY. 337 00:13:57,000 --> 00:14:01,000 >> FROM WHAT BENJAMIN FRANKL 338 00:14:01,000 --> 00:14:02,000 SAID AT THE CONSTITUTIONAL 339 00:14:02,000 --> 00:14:06,000 CONVENTION WHICH REFLECTS THE 340 00:14:06,000 --> 00:14:07,000 FODE ORIGINAL UNDERSTANDING 341 00:14:07,000 --> 00:14:09,000 AND TENURE WHICH IS AT THE 342 00:14:09,000 --> 00:14:10,000 CONSTITUTIONAL CONVENTION, 343 00:14:10,000 --> 00:14:12,000 BENJAMIN FRANKLIN ID HIS THREE 344 00:14:12,000 --> 00:14:13,000 -- THIS PROVIDES ONE EXAMPLE 345 00:14:13,000 --> 00:14:15,000 ONLY OF A CHIEFAGTRATE WHO 346 00:14:15,000 --> 00:14:18,000 IS SUBJECT TO CRIMINAL 347 00:14:18,000 --> 00:14:19,000 PROSECUTION AND EVERYBODY CRIED 348 00:14:19,000 --> 00:14:22,000 OUT AGAINST THAT. >> I UNDERSTAND BUT SINCE 349 00:14:22,000 --> 00:14:24,000 BEAM FRANKLIN, EVERYBODY HAS 350 00:14:24,000 --> 00:14:25,000 THOUGHT INCLUDING THE PRESIDENTS 351 00:14:25,000 --> 00:14:27,000 WHO HELD THE OFFICE THAT THEY 352 00:14:27,000 --> 00:14:29,000 WERE TAKING THIS OFFICE SUBJECT 353 00:14:29,000 --> 00:14:30,000 TO POTENTIAL CRIMINAL 354 00:14:30,000 --> 00:14:32,000 PROSECUTION, NO? 355 00:14:32,000 --> 00:14:35,000 I SEE THE >> EVIDENCE INTHE 356 00:14:35,000 --> 00:14:36,000 OTHER WAY. 357 00:14:36,000 --> 00:14:39,000 MARBURY VERSUS MADISON DISCUSSES 358 00:14:39,000 --> 00:14:42,000 BROUGHIMNITY. >>HAWAS UP WITH THE PARDON 359 00:14:42,000 --> 00:14:45,000 R PRESIDENT NIXON? 360 00:14:45,000 --> 00:14:47,000 EVERYBODY THOUGHT THAT 361 00:14:47,000 --> 00:14:48,000 PRESIDENTS COULDN'T BE 362 00:14:48,000 --> 00:14:49,000 PROSECUTED, THAN WHAWATHAT ABOUT? 363 00:14:49,000 --> 00:14:51,000 >> HE WAS UNDER INVESTIGATIONT 364 00:14:51,000 --> 00:14:53,000 THE TIME WITH OFFICIAL AND 365 00:14:53,000 --> 00:14:55,000 PRIVATE CONDUCT. 366 00:14:55,000 --> 00:14:59,000 EVERYONE UNDERSTANDS THAT SINCE 367 00:14:59,000 --> 00:15:00,000 PRESIDENT GRANTS CARRIAGE 368 00:15:00,000 --> 00:15:02,000 WRITING INTO -- INCIDENT, 369 00:15:02,000 --> 00:15:05,000 EVERYBODY HAS UNDERSTOOD THAT 370 00:15:05,000 --> 00:15:06,000 E PRENT CAN BE PROSECUTED. 371 00:15:06,000 --> 00:15:07,000 >> THERE SEEMS TO BE COMMON 372 00:15:07,000 --> 00:15:10,000 GROUND BE JUST BETWEEN YOU AND 373 00:15:10,000 --> 00:15:11,000 YOUR COLLEAGUE AND THE O 374 00:15:11,000 --> 00:15:14,000 SIDE THAT NO MAN IS ABOVE THE LAW AND THE PRESIDENT CAN BE 375 00:15:14,000 --> 00:15:16,000 PROSECUTED AFTER USING HIS 376 00:15:16,000 --> 00:15:18,000 OFFICE FOR HIS PRIVATE CONDUCT, 377 00:15:18,000 --> 00:15:19,000 IS THAT RIT? >> WE AGREE WITH THAT. 378 00:15:19,000 --> 00:15:24,000 >> AS WE BEEN EXPLORING TODAY, 379 00:15:24,000 --> 00:15:26,000 THQUESTION BECOMES AND HOW TO 380 00:15:26,000 --> 00:15:27,000 SEGREGATE PRIVATE FROM OFFICIAL 381 00:15:27,000 --> 00:15:30,000 CONDUCT THAT MAY OR MA NOT 382 00:15:30,000 --> 00:15:32,000 ENJOY SOME IMMUNITY AND I'M SURE 383 00:15:32,000 --> 00:15:33,000 WE WILL SPEND A LOT OF TIME 384 00:15:33,000 --> 00:15:38,000 PLORING THAT. 385 00:15:39,000 --> 00:15:44,000 IN BLASINGAME, THE CHIEF JUSTICE 386 00:15:44,000 --> 00:15:45,000 EXPRESS SOME VIEWS ABOUT HOW TO 387 00:15:45,000 --> 00:15:48,000 SEGREGATE PRIVATE CONDUCT FOR 388 00:15:48,000 --> 00:15:50,000 WHICH NO MAN IS ABOVTH LAW 389 00:15:50,000 --> 00:15:51,000 FROM OFFICIAL ACTS. 390 00:15:51,000 --> 00:15:54,000 DO YOU HAVE ANY THOUGHTS ABOUT 391 00:15:54,000 --> 00:15:55,000 THE TEST THEY CAMEP TH THERE? 392 00:15:55,000 --> 00:15:59,000 >>SPECIALLY IF IT'S UNDERSTOOD 393 00:15:59,000 --> 00:16:01,000 THROUGH THE LENS OF A SEPARATE 394 00:16:01,000 --> 00:16:03,000 OPINION IS A PERSUASIVE TEST. 395 00:16:03,000 --> 00:16:04,000 IT WOULD BE A GREAT SOURCE FOR 396 00:16:04,000 --> 00:16:06,000 THIS COURT TO RELY ON. 397 00:16:06,000 --> 00:16:08,000 ITMPSIZES THE BREADTH OF 398 00:16:08,000 --> 00:16:11,000 THAT TEST AND TALKS ABOUT HOW 399 00:16:11,000 --> 00:16:13,000 ACTIONS THAT ARE PLAUSIBLY 400 00:16:13,000 --> 00:16:14,000 CONNECD THE PRESIDENT'S 401 00:16:14,000 --> 00:16:16,000 OFFICIAL DUTIE ARE OFFICIAL 402 00:16:16,000 --> 00:16:20,000 ACTS ANDT EMPHASIZES BUT CSE 403 00:16:20,000 --> 00:16:22,000 CASEF HER CONSIDERATIONS 404 00:16:22,000 --> 00:16:23,000 THAT SHOULD BE TREATED AS IMMUNE. 405 00:16:23,000 --> 00:16:26,000 THOSE ARE THE ASPECTS OF GUIDING 406 00:16:26,000 --> 00:16:30,000 THIS. >> IT LEFT OPEN IN THAT CASE THE 407 00:16:30,000 --> 00:16:31,000 POSSIBILITY OF FURTHER PROCEEDINGS AND TRIAL. 408 00:16:31,000 --> 00:16:34,000 >> EXACTLY RIGHT AND THAT WOULD 409 00:16:34,000 --> 00:16:36,000 BE A NATURAL CRSFOR THIS 410 00:16:36,000 --> 00:16:41,000 COURT TO TAKE IN THIS SE THE COURT SHOULD AND REVERSE THE 411 00:16:41,000 --> 00:16:42,000 DCC THAT THERE IS NO THING IS 412 00:16:42,000 --> 00:16:43,000 OFFICIAL ACTS -- 413 00:16:43,000 --> 00:16:46,000 >> YOU WOULD AGREE FURTHER 414 00:16:46,000 --> 00:16:47,000 PROCEEDINGS WOULD BE REQRE 415 00:16:47,000 --> 00:16:50,000 >> THAT'S CORRECT. 416 00:16:50,000 --> 00:16:51,000 I WOULD POINT TO ANDERSON VERSUS 417 00:16:51,000 --> 00:16:54,000 CREIGHTON WHERE THER IS TWO 418 00:16:54,000 --> 00:16:56,000 STAGES OF PROCEEDIS. 419 00:16:56,000 --> 00:16:58,000 THERE IS LOOKING AT THE 420 00:16:58,000 --> 00:17:00,000 INDICTMENT AND THE CHARGING 421 00:17:00,000 --> 00:17:01,000 DOCUMENTS AND SEE IF ALLEGING 422 00:17:01,000 --> 00:17:04,000 OFFICIAL ACTAN IF NOT, 423 00:17:04,000 --> 00:17:05,000 DETERMINE THERCOD BE A 424 00:17:05,000 --> 00:17:07,000 FACTUALROEDING UNDER 425 00:17:07,000 --> 00:17:10,000 MITCHELL AGAINST FORESIGHT -- 426 00:17:10,000 --> 00:17:11,000 AGAINST FOT WOD HAVE TO 427 00:17:11,000 --> 00:17:16,000 OCCUR. >>> GO AHEAD. 428 00:17:16,000 --> 00:17:21,000 >> YOU BEGIN WHAT YOU BELIEVE 429 00:17:21,000 --> 00:17:22,000 THAT IMMUNITY FROM CRIMINAL 430 00:17:22,000 --> 00:17:24,000 PROSECUTION IS ESSENTIAL FOR 431 00:17:24,000 --> 00:17:25,000 PROPER FUNCTIONING OF THE 432 00:17:25,000 --> 00:17:27,000 PRESIDENCY. 433 00:17:27,000 --> 00:17:30,000 MY QUESTION IS WHETHER THE VERY 434 00:17:30,000 --> 00:17:34,000 ROST FORM OF IMMUNITY YOU ARE 435 00:17:34,000 --> 00:17:37,000 ADVOCATING IS REALLY NECESSARY 436 00:17:37,000 --> 00:17:39,000 IN ORDER TO ACHIEVE THAT RESULT. 437 00:17:39,000 --> 00:17:41,000 JUST TO TAKE O PSIBLE 438 00:17:41,000 --> 00:17:43,000 ALTERNATIVE, SUPPOSE THE RULE 439 00:17:43,000 --> 00:17:45,000 WHERE THAT A FORMER PRESINT 440 00:17:45,000 --> 00:17:47,000 CANNOT BE PROSECUTED FOR 441 00:17:47,000 --> 00:17:52,000 OFFICIAL ACT UNLESS NO PUSIBLE 442 00:17:53,000 --> 00:17:56,000 JUSTIFICATION COULD BE IMAGINED 443 00:17:56,000 --> 00:17:58,000 R WHAT THE PRESIDENT DID, 444 00:17:58,000 --> 00:18:01,000 TAKING INTO ACCOUNT HISTORY AND 445 00:18:01,000 --> 00:18:05,000 LEGAL PRECEDENT A T 446 00:18:05,000 --> 00:18:06,000 INFORMATION THAT WAS PROVIDED TO 447 00:18:06,000 --> 00:18:07,000 E PRESENT AT THE TIME WHEN THE 448 00:18:07,000 --> 00:18:09,000 ACT WAS TAKEN. 449 00:18:09,000 --> 00:18:12,000 WITH THAT BE SUFFICIENT? 450 00:18:12,000 --> 00:18:13,000 OR WHY WOULD IT BE IN FOR 451 00:18:13,000 --> 00:18:15,000 SUFFICIENT? 452 00:18:15,000 --> 00:18:16,000 >> THAT MIGHT BE MH BETTER 453 00:18:16,000 --> 00:18:18,000 RULE THAT WHAT EMERGED IN THE 454 00:18:18,000 --> 00:18:19,000 LOWER COURSE. 455 00:18:19,000 --> 00:18:22,000 WE THINK IT WOULD BE INSUFFICNTECAUSE THE LAW IS 456 00:18:22,000 --> 00:18:23,000 TALKING ABOUT USING E 457 00:18:23,000 --> 00:18:28,000 PRESIDENTS MOTES A INTRUSIVE 458 00:18:28,000 --> 00:18:30,000 CONSIDERATION OF THE PRESIDENTS 459 00:18:30,000 --> 00:18:33,000 MOTIVES AS TRANSFORMING ACTS OFFICIAL AND UNOFFICIAL WOULD 460 00:18:33,000 --> 00:18:34,000 COME INTO PLAY. 461 00:18:34,000 --> 00:18:37,000 ONCE YOU CAN MAKE THAT 462 00:18:37,000 --> 00:18:38,000 ALLEGATION, THEN YOU'VE OPENED THE DOOR 463 00:18:38,000 --> 00:18:41,000 YOU NO LONGER HAVE A CLEAR RULE. 464 00:18:41,000 --> 00:18:42,000 YOU HAVE A DETERMINATION IN 465 00:18:42,000 --> 00:18:43,000 ERSINGLE CASE. 466 00:18:43,000 --> 00:18:48,000 >> WHAT IF DID NOT INVOLVE 467 00:18:49,000 --> 00:18:50,000 ANY OBJECTIVE, IT WOULD LOOK 468 00:18:50,000 --> 00:18:52,000 OBJECTIVELY AT THE VARIOUS 469 00:18:52,000 --> 00:18:53,000 RELEVANT FACTORS. 470 00:18:53,000 --> 00:18:56,000 >> THAT SOUNDS A LOT LIKE 471 00:18:56,000 --> 00:19:00,000 BLASINGAME. 472 00:19:00,000 --> 00:19:01,000 IF YOU LOOK AT THE SEPARATE 473 00:19:01,000 --> 00:19:02,000 OPINION, TT Y NOT BE 474 00:19:02,000 --> 00:19:04,000 DIFFERENT THAN ATE PROPOSE 475 00:19:04,000 --> 00:19:07,000 IN COURT TODAY. >> FLASHING GAME HAD TO DO WITH 476 00:19:07,000 --> 00:19:08,000 THE DIFFERENT DREAM PRIVATE AND 477 00:19:08,000 --> 00:19:10,000 OFFICIAL CONDUCT. 478 00:19:10,000 --> 00:19:11,000 THAT'S WHAT I UNDERAN 479 00:19:11,000 --> 00:19:15,000 >> THIS WOULD APPLANIT'S A 480 00:19:15,000 --> 00:19:17,000 POSSIBILITY BUT I DON'T OW 481 00:19:17,000 --> 00:19:19,000 WHETHER IT'S A GOOD OR BAD IDEA 482 00:19:19,000 --> 00:19:21,000 OR CAN BE RID FROM THE 483 00:19:21,000 --> 00:19:22,000 STRUCTURE OF THEONITUTION OR 484 00:19:22,000 --> 00:19:23,000 ANY OTHER SOURCE. 485 00:19:23,000 --> 00:19:25,000 BUT TH WLD BE APPLIED IN A 486 00:19:25,000 --> 00:19:29,000 TRULY OBJECTIVE GROUNDS. 487 00:19:29,000 --> 00:19:31,000 WHEN THE PRESIDENT INVOKES AN 488 00:19:31,000 --> 00:19:34,000 OFFICIAL POWER IN TAKING THE 489 00:19:34,000 --> 00:19:37,000 ACTION THAT IS AT ISSUE. >> THE REASON I THINK OF 490 00:19:37,000 --> 00:19:38,000 BLASINGAME AS IT TALKS ABOUT AN 491 00:19:38,000 --> 00:19:41,000 OBJECTIVE CONTEXT WITH SPECIFIC 492 00:19:41,000 --> 00:19:43,000 DETERMINATION TO WINNOW OUT 493 00:19:43,000 --> 00:19:44,000 WHAT'S OFFICIAL AND PRIVATE 494 00:19:44,000 --> 00:19:45,000 CONDUCT. 495 00:19:45,000 --> 00:19:50,000 >> I'M SORRY, IF I UNDERSTOOD 496 00:19:51,000 --> 00:19:52,000 JUSTICE ALITO, HE SUGGESTING NOT 497 00:19:52,000 --> 00:19:56,000 THAT. HE SUGGESTING WHETHER EVEN IF IT 498 00:19:56,000 --> 00:19:59,000 IS AN OFFICIAL ACT WHETHER YOU 499 00:19:59,000 --> 00:20:02,000 STILL GRANT IMMUNITY IF THAT ACT 500 00:20:02,000 --> 00:20:07,000 DOES NOT PLAUSIBLY VIEWED AS 501 00:20:07,000 --> 00:20:12,000 WITHIN THE REALM OF LAW. 502 00:20:14,000 --> 00:20:15,000 HE CAN CORRECT ME IF I'M WRONG. 503 00:20:15,000 --> 00:20:17,000 >> THAT WAS THE QUESTION. 504 00:20:17,000 --> 00:20:20,000 >> THAT I THINK WOULD BE A 505 00:20:20,000 --> 00:20:22,000 SUPERIOR RULE THEN WHAT IS IN 506 00:20:22,000 --> 00:20:23,000 THE CATEGORICAL FILE THAT 507 00:20:23,000 --> 00:20:24,000 EMERGED IN THE TRIAL. 508 00:20:24,000 --> 00:20:28,000 >> I'M NOT QUITE SURE WHYE E 509 00:20:28,000 --> 00:20:29,000 THE WORD PLAUSIBLE BECAUSE THAT 510 00:20:29,000 --> 00:20:34,000 SEEM TO NEGATE, MIGHT IS WELL 511 00:20:36,000 --> 00:20:38,000 GIVE ABSOLUTE IF YOU SAY PROUD 512 00:20:38,000 --> 00:20:39,000 AUBLE BECAUSE ANYBODY COULD 513 00:20:39,000 --> 00:20:43,000 ARGUE PLAUSIBILITY. 514 00:20:43,000 --> 00:20:46,000 WE DON'T EVEN REQUIRE PLAUSIBLE, WE REQUIRE REASONABLE AND 515 00:20:46,000 --> 00:20:47,000 QUALIFIED IMMUNITY. 516 00:20:47,000 --> 00:20:52,000 >> OHT AUE THAT IT IS 517 00:20:52,000 --> 00:20:53,000 NOTLAUSIBLY LEGAL TO ORDER 518 00:20:53,000 --> 00:20:55,000 SEAL TEAM SIX AND I DON' 519 00:20:55,000 --> 00:20:58,000 TO SLANDER SEAL TEAM SIX BECAUSE 520 00:20:58,000 --> 00:21:03,000 SERIOUSLY THEY ARE HONORABLE. 521 00:21:04,000 --> 00:21:06,000 THEY ARE BOUND BY THE UNIFORM 522 00:21:06,000 --> 00:21:07,000 CODE OMITARY JUSTICE NOT TO 523 00:21:07,000 --> 00:21:10,000 OBEY UNLAWFUL ORDERS. 524 00:21:10,000 --> 00:21:11,000 THINK ONE COULD SAY THAT IT' 525 00:21:11,000 --> 00:21:15,000 NOTLAIBLE THAT THAT IS 526 00:21:15,000 --> 00:21:16,000 LEGAL, THAT THE ACTION WOULD BE GA 527 00:21:16,000 --> 00:21:19,000 I'M SURE YOU'VE THOUGHT OF LOTS 528 00:21:19,000 --> 00:21:20,000 OF HYPOTHETICALS AND 'M SURE 529 00:21:20,000 --> 00:21:21,000 YOU HAVE AS WELL WHERE PRESIDENT 530 00:21:21,000 --> 00:21:24,000 COULD SAY I'M USING AN OFFICIAL 531 00:21:24,000 --> 00:21:27,000 POWER AND YET THE PRESIDENT USES 532 00:21:27,000 --> 00:21:28,000 IT IN AN OUTRAGEOUS MANNER. 533 00:21:28,000 --> 00:21:32,000 >> THAT MAY WELL BE AN OBJECTIVE 534 00:21:32,000 --> 00:21:33,000 DETERMINATION. 535 00:21:33,000 --> 00:21:37,000 >> APPLY IT THE ALLEGATIONS 536 00:21:37,000 --> 00:21:38,000 HERE. 537 00:21:38,000 --> 00:21:41,000 WHAT IS PLAUSIBLE ABOUT T 538 00:21:41,000 --> 00:21:46,000 PRESIDENT ASSISTING IN CREATING 539 00:21:46,000 --> 00:21:50,000 A FRAUDULENT SLATE OF ECRAL 540 00:21:50,000 --> 00:21:51,000 CANDIDATES. 541 00:21:51,000 --> 00:21:53,000 ASSUMING YOU A SECT THE FACTS OF 542 00:21:53,000 --> 00:21:56,000 THCOLAINT ON THEIR FACE, IS 543 00:21:56,000 --> 00:21:58,000 THAT PLAUSIBLE THAT THAT WOULD 544 00:21:58,000 --> 00:22:00,000 BE WITHIN HIS RIGHTS TO DO? 545 00:22:00,000 --> 00:22:04,000 >> ABSOLUTELY, WE'VE HAD 546 00:22:04,000 --> 00:22:05,000 HISTORICAL PRECEDENT WITH 547 00:22:05,000 --> 00:22:07,000 ESIDENT GRANT SENDING FEDERAL 548 00:22:07,000 --> 00:22:10,000 TROOPS TO MISSISSIPPI TO MAKE 549 00:22:10,000 --> 00:22:11,000 SURE THE REPUBLICANLEORS GOT 550 00:22:11,000 --> 00:22:12,000 CERTIFIED IN THOSE TWO CASES 551 00:22:12,000 --> 00:22:14,000 ICDELIVERED THE ELECTION TO 552 00:22:14,000 --> 00:22:16,000 RUTHERFORD B HAYES. 553 00:22:16,000 --> 00:22:18,000 THE NOTION THAT THAT IS 554 00:22:18,000 --> 00:22:19,000 IMPLAUSIBLE, CAN'T BE SUPPORTED 555 00:22:19,000 --> 00:22:20,000 BASED ON THIS INDICTMENT - 556 00:22:20,000 --> 00:22:25,000 >> KNOWING THAT E SLATE IS 557 00:22:25,000 --> 00:22:28,000 FAKE AND THEY WEREN'T ACTUALLY 558 00:22:28,000 --> 00:22:29,000 ELECTED AND THEY WEREN'T 559 00:22:29,000 --> 00:22:31,000 CERTIFIED BY THE STE, HE KNOWS 560 00:22:31,000 --> 00:22:36,000 ALL THOSE THINGS? >> THE INDICTMENT ITSELF ALLEGES 561 00:22:38,000 --> 00:22:40,000 AN EFFECTS OF WORD LABEL TO THE 562 00:22:40,000 --> 00:22:42,000 WORD FRAUDULENT. 563 00:22:42,000 --> 00:22:44,000 THAT'S A COMPLETE MIXED 564 00:22:44,000 --> 00:22:46,000 CHARACTERIZATI. 565 00:22:46,000 --> 00:22:48,000 IT WAS THERE NO DECEIT ABOUT WHO 566 00:22:48,000 --> 00:22:50,000 HAD EMERGED FROM THE CVEION 567 00:22:50,000 --> 00:22:51,000 AND THIS WAS DONE ON AN 568 00:22:51,000 --> 00:22:53,000 ALTERNATIVE BASIS. 569 00:22:53,000 --> 00:22:54,000 WA TO ADDRESS THE HIGHER 570 00:22:54,000 --> 00:22:59,000 LEVEL POINT WHICH IS THAT THERE 571 00:22:59,000 --> 00:23:02,000 IS A WHOLE SERIES OF STRUCTURAL 572 00:23:02,000 --> 00:23:04,000 CHECKS OTHER THAN CRIMINAL 573 00:23:04,000 --> 00:23:05,000 PROSECUTION THAT ARE DESIGNED TO 574 00:23:05,000 --> 00:23:07,000 TER THESE KINDS OF OUTLANDISH 575 00:23:07,000 --> 00:23:09,000 SCENARIOS OR OBVIOUSLY ILLEGAL 576 00:23:09,000 --> 00:23:11,000 THINGS. 577 00:23:11,000 --> 00:23:12,000 THAT'S BEEN VIEWED IN THIS 578 00:23:12,000 --> 00:23:13,000 COURT'S OP -- 579 00:23:13,000 --> 00:23:16,000 >> WHERE DO YOU THINK THE D.C. 580 00:23:16,000 --> 00:23:17,000 CIRCUIT JUDGE WRONG AND HOW IT 581 00:23:17,000 --> 00:23:21,000 VERSUS WHAT PERSONAL?FFICIAL 582 00:23:21,000 --> 00:23:24,000 >> I RD E OPINION BELOW IN 583 00:23:24,000 --> 00:23:27,000 THIS CASE. 584 00:23:27,000 --> 00:23:28,000 IT DOES NOT MATTER THE LOGIC OF 585 00:23:28,000 --> 00:23:30,000 THEIR OPINION. 586 00:23:30,000 --> 00:23:31,000 THERE IS NO IMMUNITY FOR 587 00:23:31,000 --> 00:23:34,000 OFFICIAL ACTS AND THEREFORE THAT 588 00:23:34,000 --> 00:23:35,000 THE END OF THE STORY. 589 00:23:35,000 --> 00:23:38,000 I DON'T REALLY THINK THEY WENT 590 00:23:38,000 --> 00:23:39,000 WRONG IN BLASINGAME WHEN THEY 591 00:23:39,000 --> 00:23:42,000 ENGAGED IN THE SAME 592 00:23:42,000 --> 00:23:43,000 DETERMINATION WITH RESPECT TO 593 00:23:43,000 --> 00:23:44,000 WHAT'S OFFICIAL AND WHAT ISN'T. 594 00:23:44,000 --> 00:23:46,000 THERE WE AGREE WH ST OF WHAT 595 00:23:46,000 --> 00:23:49,000 THAT OPINION SAYS. >> FOR SOME OFFICIAL AS AT 596 00:23:49,000 --> 00:23:50,000 ARE NOT WITHIN THE ARTICLE TO 597 00:23:50,000 --> 00:23:54,000 EXCLUSIVE PER SO OFFICIAL ACTS 598 00:23:54,000 --> 00:23:55,000 BUT NOT WITHIN THE ARTICLE TO 599 00:23:55,000 --> 00:23:57,000 EXCLUSIVE POWER, EVEN FOR THOSE, 600 00:23:57,000 --> 00:24:01,000 I ASSUME YOU WOUL THINK THAT A 601 00:24:01,000 --> 00:24:04,000 CLEAR STATEMENT HAS TO BE 602 00:24:04,000 --> 00:24:05,000 REQUIRED, CLEAR STATEMENT IN THE 603 00:24:05,000 --> 00:24:09,000 STATUTE COVERING THE PRESIDE 604 00:24:09,000 --> 00:24:10,000 IF THE OFFICIAL ACTS ARE GOING 605 00:24:10,000 --> 00:24:14,000 TO BE CRIMINALIZED. >> OBVIOUSLY,T E HIGHEST 606 00:24:14,000 --> 00:24:16,000 POSSIBLE LEVEL WHEN IT COMES TO 607 00:24:16,000 --> 00:24:17,000 THE UNRESTRICTED WILL POWERS IN 608 00:24:17,000 --> 00:24:18,000 THIS INDICTMENT -- 609 00:24:18,000 --> 00:24:22,000 >> I'M ASSUMING T ELUSIVE 610 00:24:22,000 --> 00:24:24,000 POWERS ARE WALLED OFF AND CAN'T 611 00:24:24,000 --> 00:24:26,000 PROSECUTED. 612 00:24:26,000 --> 00:24:29,000 THERE ARE A LOT OF OFFICIAL 613 00:24:29,000 --> 00:24:30,000 POWERS THAT ARE T CLUSIVE TO 614 00:24:30,000 --> 00:24:32,000 THE PRESIDENT UNDER ARTICLE TWO AUTHORIT 615 00:24:32,000 --> 00:24:33,000 FOR THOSE, I UNDERSTOOD YOU TO 616 00:24:33,000 --> 00:24:35,000 SAY AA NIMUM, THERE WOULD 617 00:24:35,000 --> 00:24:37,000 NEED TO BE CARTATEMENT IN 618 00:24:37,000 --> 00:24:39,000 THE STATUTE REFERENCING THE 619 00:24:39,000 --> 00:24:44,000 PRESIDENT SO THAT THE PRESIDENT IS ON NOTICE AND CAN CONDUCT 620 00:24:45,000 --> 00:24:46,000 HIMSELF OR HSE ACCORDINGLY. 621 00:24:46,000 --> 00:24:49,000 >> THAT'S CORRECT AND THAT WOULD 622 00:24:49,000 --> 00:24:51,000 BE CONSISTENT. 623 00:24:51,000 --> 00:24:56,000 >> CAN IW UPN THAT? 624 00:24:56,000 --> 00:24:57,000 YOU CAN SEE THE PRIVATE ACT 625 00:24:57,000 --> 00:24:58,000 DON'T GET IMMUNITY. 626 00:24:58,000 --> 00:24:59,000 >>E DO. 627 00:24:59,000 --> 00:25:03,000 >> IN THE SPECIAL COUNSEL BRIEF 628 00:25:03,000 --> 00:25:06,000 ON PAGES 46 AND 47, UES US 629 00:25:06,000 --> 00:25:09,000 EVEN IF WE ASSUME OR WERE TO 630 00:25:09,000 --> 00:25:10,000 DECIDE OR ASSUMTHE WAS SOME 631 00:25:10,000 --> 00:25:11,000 SORT OF IMMUNITY FOR OFFICIAL 632 00:25:11,000 --> 00:25:12,000 ACTS THAT THERE WAS INSUFFICIENT 633 00:25:12,000 --> 00:25:16,000 PRIVATECTMEANT FOR THE TRIAL 634 00:25:16,000 --> 00:25:18,000 --OR THE CASE TO GO BACK INTO TRIAL IMMEDIATELY. 635 00:25:18,000 --> 00:25:20,000 I WANTO KNOW IF YOU AGREE OR 636 00:25:20,000 --> 00:25:22,000 DISAEEBOUT THE CHARACTERIZATION OF THESE ACTS 637 00:25:22,000 --> 00:25:23,000 AS PRIVATE. 638 00:25:23,000 --> 00:25:26,000 THE COMMISSIONERS LET THAT 639 00:25:26,000 --> 00:25:29,000 SPREAD TO A PRIVATE ATTORNEY AND 640 00:25:29,000 --> 00:25:30,000 WAS WILLING TO SPREAD RUMORS 641 00:25:30,000 --> 00:25:32,000 ABOUT ELTION RESULTS. 642 00:25:32,000 --> 00:25:33,000 >> IT SOUNDS PRIVATE. 643 00:25:33,000 --> 00:25:37,000 >> GEEK CONSPIRED WITH ANOTHER 644 00:25:37,000 --> 00:25:41,000 IVATE ATTORNEY THAT HAD THE 645 00:25:41,000 --> 00:25:42,000 FALSE ALLEGATION TO SUPPORT A 646 00:25:42,000 --> 00:25:44,000 CHALLENGE. >> THAT ALSO SOUNDS RIGHT. 647 00:25:44,000 --> 00:25:47,000 >> THREE PRIVATE ACT THROU 648 00:25:47,000 --> 00:25:50,000 ATTORNEYS AND A POLITICAL 649 00:25:50,000 --> 00:25:54,000 CONSULTANT HELP IMPLEMT PLAN TO SUBMIT FRAUDULENT ELECTORS TO 650 00:25:54,000 --> 00:25:58,000 OBSTRUCT THE CERTIFICATION 651 00:25:58,000 --> 00:26:01,000 RESULTS. >> BELIEVE THAT'S PRIVATE. 652 00:26:01,000 --> 00:26:03,000 >> SO THOSE ACTS YOU WOULD NOT 653 00:26:03,000 --> 00:26:05,000 DISPUTE, THOSE WERE PRIVATE AND 654 00:26:05,000 --> 00:26:07,000 U ULDN'T RAISE A CRANK -- 655 00:26:07,000 --> 00:26:08,000 RAISE A CLAIM THEY WERE 656 00:26:08,000 --> 00:26:12,000 OFFICIAL? >> BUT WE WOULD SAY IS OFFICIALS 657 00:26:12,000 --> 00:26:13,000 THINGS LIKE BEING WITH THE 658 00:26:13,000 --> 00:26:14,000 DEPAME OF JUSTICE TO 659 00:26:14,000 --> 00:26:15,000 DELIBERA AUT WHO WILL BE THE 660 00:26:15,000 --> 00:26:17,000 ACTING INTERNAL -- ATTORNEY 661 00:26:17,000 --> 00:26:19,000 GENERAL OF UNITED STATES, 662 00:26:19,000 --> 00:26:20,000 COMPARING CADETS COMMITTED 663 00:26:20,000 --> 00:26:21,000 GETTING TO THE PUBLIC OR THE SENATE. 664 00:26:21,000 --> 00:26:25,000 >> THANK YOU. >> YOU, COUNSEL AND WHAT 665 00:26:25,000 --> 00:26:26,000 IS THE CONSEQUENCE IN TERMS OF 666 00:26:26,000 --> 00:26:28,000 GOING FORWARD WITH YOUR 667 00:26:28,000 --> 00:26:29,000 ACKNOWLEDGMENT THAT THOSE ARE 668 00:26:29,000 --> 00:26:31,000 PRIVATE ACTS AS OPPOSED TO 669 00:26:31,000 --> 00:26:35,000 OFFICIAL ACTS? >> IF YOU LOOK A THE INDICTMENT 670 00:26:35,000 --> 00:26:36,000 HERE, THERE'A BUNCH OF ACTS 671 00:26:36,000 --> 00:26:38,000 THAT ARE CLEARLY OFFICIAL. 672 00:26:38,000 --> 00:26:39,000 THERE MAY BE ALLEGATIONS THAT 673 00:26:39,000 --> 00:26:40,000 MOST RATTO WHAT THE 674 00:26:40,000 --> 00:26:41,000 GOVERNMENT HAS DESCRIBED AS 675 00:26:41,000 --> 00:26:46,000 PRIVATE AIM OR END AND THE COURT 676 00:26:46,000 --> 00:26:48,000 SHLD ADDRESS ITS OUTPUT REMAND 677 00:26:48,000 --> 00:26:50,000 FOR A BREWSTER LIKE 678 00:26:50,000 --> 00:26:51,000 DETERMINATION LIKE WHAT'S 679 00:26:51,000 --> 00:26:54,000 OFFICIAL AND WHAT'PRATE. 680 00:26:54,000 --> 00:26:55,000 THE OFFICIAL STUFF HAS TO BE 681 00:26:55,000 --> 00:26:57,000 EXPUNGED FROM THE INDICTMENT AND 682 00:26:57,000 --> 00:26:58,000 THERE HAS TO BE A DETERMINATION 683 00:26:58,000 --> 00:27:00,000 OF WHAT'S OFFICIAL TO STAGE A 684 00:27:00,000 --> 00:27:01,000 DETERMINIO 685 00:27:01,000 --> 00:27:04,000 >> IF YOU EXPUNGE THE OFFICIAL 686 00:27:04,000 --> 00:27:07,000 RT FROM THE INDTMT, THAT'S 687 00:27:07,000 --> 00:27:10,000 LIKE A ONE LEGGED STOOL. 688 00:27:10,000 --> 00:27:12,000 GIVING SOMEBODY MEY IS NOT 689 00:27:12,000 --> 00:27:13,000 BRIBERY UNLESS YOU GET SOMETHING IN EXCHANGE. 690 00:27:13,000 --> 00:27:16,000 WHAT YOUET IN EXCHANGE THE 691 00:27:16,000 --> 00:27:17,000 COME THE INVESTOR OF A 692 00:27:17,000 --> 00:27:20,000 COUNTRY, THAT IS OFFICIAL THE 693 00:27:20,000 --> 00:27:22,000 APPOINTMENT IT'S WITHIN THE 694 00:27:22,000 --> 00:27:23,000 PRESIDENT'S PREROGATIVE. 695 00:27:23,000 --> 00:27:24,000 THE UNOFFICIAL PAR IS I WILL 696 00:27:24,000 --> 00:27:26,000 GET A MILLION DOLLARS FOR IT. 697 00:27:26,000 --> 00:27:29,000 IF YOU SAY YOU HAVE TO EXPGE 698 00:27:29,000 --> 00:27:30,000 THE OFFICIAL PART, HOW DOES THAT GO FORWARD? 699 00:27:30,000 --> 00:27:35,000 >> THIS PARTICULAR INDICTMENT, 700 00:27:36,000 --> 00:27:37,000 WE DON'T BELIEVE IT WOULD BE 701 00:27:37,000 --> 00:27:39,000 ABLE TO GO FORWARD. 702 00:27:39,000 --> 00:27:41,000 IF YOU LOOK AT THE GOVERNMENT'S 703 00:27:41,000 --> 00:27:42,000 BRIEF IN HIS CASE DIVIDES THE 704 00:27:42,000 --> 00:27:44,000 INDICTMENT INTO IN OTHER 705 00:27:44,000 --> 00:27:49,000 THAN THE ELECTORS ALLEGATIONS. 706 00:27:50,000 --> 00:27:52,000 THEY HAVEN'T DISPUTED IT IFHE 707 00:27:52,000 --> 00:27:53,000 ARE OFFICIAL ACTS BUT THEY SAY 708 00:27:53,000 --> 00:27:55,000 WE TIED TOGETHER BY 709 00:27:55,000 --> 00:27:59,000 CHACRIZING IT AS DONE IN THE 710 00:27:59,000 --> 00:28:00,000 ALLEGATIONS THE COURT JUST REFERRED TO BY AN IMPROPER 711 00:28:00,000 --> 00:28:04,000 PRIVATE AIM WERE END THAT JUST 712 00:28:04,000 --> 00:28:09,000 RUNS AT LOGGERHEADS. 713 00:28:12,000 --> 00:28:13,000 THE IMPROPER MOTIVATION IS WHAT YOU LOOK AT. 714 00:28:13,000 --> 00:28:15,000 >> JUSTICE THOMAS? 715 00:28:15,000 --> 00:28:20,000 >> IN ASSESSING THE OFFICIAL 716 00:28:20,000 --> 00:28:22,000 ACTS OF A PRESIDENT, DO YOU 717 00:28:22,000 --> 00:28:25,000 DIFFERENTIATE BETWEEN PRESIDENT 718 00:28:25,000 --> 00:28:28,000 ACTING AND THE PRESIDENT ACTING 719 00:28:28,000 --> 00:28:29,000 AS A CANDIDATE? 720 00:28:29,000 --> 00:28:31,000 >> YES, WE DO. 721 00:28:31,000 --> 00:28:35,000 WE DON'T DISPUTE THE BLAZING 722 00:28:35,000 --> 00:28:39,000 ME OBJECTIVE OF THAT. 723 00:28:39,000 --> 00:28:44,000 >> IN THIS LITIGATION, DID Y 724 00:28:46,000 --> 00:28:47,000 CHALLENGE THE APPOINTMENT OF 725 00:28:47,000 --> 00:28:48,000 SPECIAL UNL? 726 00:28:48,000 --> 00:28:51,000 >> NOT DIRTLBUT WE HAVE DONE 727 00:28:51,000 --> 00:28:54,000 SO LIKE IN THE FLORIDA CASE AND WE AGREE WITH THE ANALYSIS 728 00:28:54,000 --> 00:28:56,000 PROVIDED BY ATTORNEY GENERAL 729 00:28:56,000 --> 00:28:58,000 MEESE AND CASEY AND ITOIS TO 730 00:28:58,000 --> 00:28:59,000 AN IMPORTANT ISSUE. 731 00:28:59,000 --> 00:29:03,000 ONE OF THEIRRGENTS IS THAT 732 00:29:03,000 --> 00:29:04,000 WE SHOULD HAVE THE ASSUMPTION OF 733 00:29:04,000 --> 00:29:06,000 REGULARITY. 734 00:29:06,000 --> 00:29:07,000 THAT RUNS INTO THE REALITY WE 735 00:29:07,000 --> 00:29:09,000 HAVE HERE AN EXTRAORDINARY 736 00:29:09,000 --> 00:29:13,000 PROSECUTOR EARLY DISH 737 00:29:13,000 --> 00:29:15,000 PROSECUTORIAL POWER EXERCISED 738 00:29:15,000 --> 00:29:17,000 AND CONFIRMED BY THE SENATE AT 739 00:29:17,000 --> 00:29:18,000 ANY TIME. 740 00:29:18,000 --> 00:29:19,000 WE AGREE WITH THAT POSITION. 741 00:29:19,000 --> 00:29:22,000 WE HAVEN'T RAISED IT YET IN THIS 742 00:29:22,000 --> 00:29:23,000 CASE WHEN IT WENT UP ON APPEAL. 743 00:29:23,000 --> 00:29:25,000 >> JUSTICE ALITO? 744 00:29:25,000 --> 00:29:28,000 >> WEN YU STADIA OFFICIAL ACTION 745 00:29:28,000 --> 00:29:30,000 BE EXPUNGED FM THE INDICTMENT, 746 00:29:30,000 --> 00:29:32,000 THAT IN ITSELF WOULD NOT ACHIEVE 747 00:29:32,000 --> 00:29:36,000 MUCH UNLESS EVIDENCE OF THOSE 748 00:29:36,000 --> 00:29:37,000 OFFICIAL ACTS WERE PCLED AT 749 00:29:37,000 --> 00:29:38,000 TRIAL. 750 00:29:38,000 --> 00:29:39,000 IS THAT WHAT YOU ARE SAYING, 751 00:29:39,000 --> 00:29:41,000 THAT PROSECUTION SHOULD NOT BE 752 00:29:41,000 --> 00:29:44,000 PEITD AT TRIAL TO PROVE THE 753 00:29:44,000 --> 00:29:47,000 OFFICIAL ACTS AS PART O THE 754 00:29:47,000 --> 00:29:48,000 CONSPIRACIES TT E ALLEGED? 755 00:29:48,000 --> 00:29:50,000 >> ABSOLUTELY AND THAT'S THE 756 00:29:50,000 --> 00:29:52,000 CLEAR INDICATIONS OF BREWSTER 757 00:29:52,000 --> 00:29:53,000 AND JOHNSON. 758 00:29:53,000 --> 00:29:57,000 >> THANK YOU. >> I'M A LITTLE BIT NFED BY 759 00:29:57,000 --> 00:30:00,000 THAT. 760 00:30:00,000 --> 00:30:04,000 IF YOU HAVE A SCHEME TOEFRAUD 761 00:30:04,000 --> 00:30:06,000 OR A SCHEME TO ACCEPT BRIBERY, 762 00:30:06,000 --> 00:30:07,000 THERE IS EVIDENCE FROM WHICH YOU 763 00:30:07,000 --> 00:30:10,000 N FER THAT SCREEN -- THAT 764 00:30:10,000 --> 00:30:12,000 SCHEME AND ONE IS THE 765 00:30:12,000 --> 00:30:13,000 APPOINTMENT ACTUALLY HAPPENED. 766 00:30:13,000 --> 00:30:14,000 IT'S AN OFFIAACT. 767 00:30:14,000 --> 00:30:15,000 YOU WOULDN'T EXPUNGE THAT AS 768 00:30:15,000 --> 00:30:16,000 EVIDENCE. 769 00:30:16,000 --> 00:30:19,000 YOU WOD STRUCT THE JURY TT 770 00:30:19,000 --> 00:30:21,000 THERE IS NO VIABILITY FOR THE 771 00:30:21,000 --> 00:30:23,000 ACTUAL APPOINTMENT. 772 00:30:23,000 --> 00:30:26,000 THE LIABILITY IS FOR ACCEPTING 773 00:30:26,000 --> 00:30:28,000 THE BRIBE. 774 00:30:28,000 --> 00:30:30,000 SIMILARLY HERE, I DON'T INK 775 00:30:30,000 --> 00:30:32,000 THE INDICTMENT IS CHARGING THAT 776 00:30:32,000 --> 00:30:37,000 THE OBSTRUCTION OCCURRED SOLELY 777 00:30:38,000 --> 00:30:39,000 BEUSOF CONVERSATIONS WITH 778 00:30:39,000 --> 00:30:40,000 THE JUSTICE DEPARTMENT. 779 00:30:40,000 --> 00:30:43,000 THEY ARE SAYING YOU LOOK AT ALL 780 00:30:43,000 --> 00:30:47,000 OF THERITE ACTS AND YOU LOOK 781 00:30:47,000 --> 00:30:48,000 IN THE CONTEXT OF SOME OF THE 782 00:30:48,000 --> 00:30:52,000 PUBLIC ACTS AND YOU CAN INFER 783 00:30:52,000 --> 00:30:54,000 E TENT, THE PRIVATE INTENT 784 00:30:54,000 --> 00:30:57,000 FROM THEM. 785 00:30:57,000 --> 00:30:58,000 I'M NOT SURE THAT I UERSTAND 786 00:30:58,000 --> 00:31:01,000 WHY YOUR PROBLEMS COULDN'T BE 787 00:31:01,000 --> 00:31:04,000 TAKEN CARE OF AT TRIAL WITH AN 788 00:31:04,000 --> 00:31:06,000 INSTRUCTION IF WE BELIEVE, IF 789 00:31:06,000 --> 00:31:08,000 THE COURT WERE TO FIND AND I'M 790 00:31:08,000 --> 00:31:09,000 NOT SURE HOW THEY COD T IF 791 00:31:09,000 --> 00:31:12,000 IT WERE TO FIND THASO PUBLIC 792 00:31:12,000 --> 00:31:16,000 ACTS COULD NOT BE THE BASIS OF 793 00:31:16,000 --> 00:31:20,000 CRIMINAL LBITY. >> THE BEST THING I CAN SAY TO 794 00:31:20,000 --> 00:31:23,000 THAT AND I THINK THIS TIES INTO 795 00:31:23,000 --> 00:31:24,000 THE CHIEF JUSTICE'S QUESTION 796 00:31:24,000 --> 00:31:26,000 ABOUT A ONE LEGGED STOOL. 797 00:31:26,000 --> 00:31:27,000 ROOSTER AND JOHNSON IN 798 00:31:27,000 --> 00:31:29,000 SUBSEQUENT CALLUSE ESSENTIALLY 799 00:31:29,000 --> 00:31:32,000 SAY THAT THAT THIS A ONE 800 00:31:32,000 --> 00:31:35,000 LEGGED STOOL PROBL. 801 00:31:35,000 --> 00:31:37,000 SOME OF THE PROSECUTIONS CAN 802 00:31:37,000 --> 00:31:38,000 PROCEED IN THAT THE IMPLICATION 803 00:31:38,000 --> 00:31:39,000 OF OFFICIAL IMMUNITY WHICH IS 804 00:31:39,000 --> 00:31:41,000 DICTATED IN THE CONSTITUTION BY 805 00:31:41,000 --> 00:31:42,000 THE EXECUTIVE VESTING CLAUSE. 806 00:31:42,000 --> 00:31:47,000 >> TO CONTINUE ON IN JUSTIC 807 00:31:48,000 --> 00:31:49,000 BARRETT'S VEIN AND ASK YOU ABOUT 808 00:31:49,000 --> 00:31:51,000 SOME OF THE ALLEGATIONS OF THE 809 00:31:51,000 --> 00:31:53,000 INDICTMENT AND WHETHER THEY ARE 810 00:31:53,000 --> 00:31:55,000 OFFICIAL ACTS WERE NOT IN YOUR VI. 811 00:31:55,000 --> 00:31:57,000 THE DENDANT SIGNED A 812 00:31:57,000 --> 00:31:59,000 VERIFICATION AFFIRMING FULL 813 00:31:59,000 --> 00:32:01,000 SELECTION OF FRAUD AND ALLEGATIONS MADE OHI BEHALF 814 00:32:01,000 --> 00:32:03,000 ON A LAWSUIT FILED IN HIS NAME 815 00:32:03,000 --> 00:32:04,000 AGAINST THE GEORGIA GOVERNOR. 816 00:32:04,000 --> 00:32:08,000 >> I DON'T THINK WE'VE DISPUTED 817 00:32:08,000 --> 00:32:09,000 THAT. 818 00:32:09,000 --> 00:32:10,000 THAT IS UNOFFICIAL. 819 00:32:10,000 --> 00:32:14,000 >> SAME FOR THE DEFDA 820 00:32:14,000 --> 00:32:15,000 CALLING THE CHAIRWOM OTHE 821 00:32:15,000 --> 00:32:16,000 REPUBLICAN NATIONAL CMITTEE 822 00:32:16,000 --> 00:32:18,000 AND ESTHER TOGETHER ELECTORS D 823 00:32:18,000 --> 00:32:20,000 TARGETED STATES FALSELY 824 00:32:20,000 --> 00:32:21,000 REPRESENTED THAT SUCH ECRS 825 00:32:21,000 --> 00:32:23,000 VOTES WOULD BE USED ONLY OF 826 00:32:23,000 --> 00:32:24,000 ONGOING LITIGATION AND ONE OF 827 00:32:24,000 --> 00:32:25,000 THE STATES CHANGED THE RESULTS 828 00:32:25,000 --> 00:32:26,000 OF T DEFENDANTS FAVOR? 829 00:32:26,000 --> 00:32:30,000 >> WE HAVE TAKEN THE PITN 830 00:32:30,000 --> 00:32:32,000 THAT THAT'S OFFICIAL. >> WHY WOULD THAT BE OFFICIAL? 831 00:32:32,000 --> 00:32:37,000 >> IT'S BASED ON THE HISTORICAL 832 00:32:38,000 --> 00:32:40,000 EXAMPLE OF PRESIDENT GRANT AND 833 00:32:40,000 --> 00:32:41,000 I'S SOMETHING THAT WAS DONE 834 00:32:41,000 --> 00:32:46,000 PURSUANT TO THE EXERCISE OF THE 835 00:32:46,000 --> 00:32:47,000 CORE RECOMMENDATION CLAUSE 836 00:32:47,000 --> 00:32:50,000 POWER. >> COULDN'T HE HAVE TAKEN THIS 837 00:32:50,000 --> 00:32:52,000 ACTION JUST IN THE STATUS OF A 838 00:32:52,000 --> 00:32:54,000 CANDIDATE? >> THE FACT THAT HE COULD HAVE 839 00:32:54,000 --> 00:32:56,000 DONEO DOESN'T DEMONSTRATE THAT 840 00:32:56,000 --> 00:32:57,000 HE DID DO SO. 841 00:32:57,000 --> 00:32:59,000 BASED ON THE ALLEGATIONS, IT'S 842 00:32:59,000 --> 00:33:01,000 CLEAR HE DID NOT THAT THIS WAS 843 00:33:01,000 --> 00:33:05,000 DONE IN AN OFFICL CAPACITY. 844 00:33:05,000 --> 00:33:06,000 >> THE DEFENDANT ASKED THE 845 00:33:06,000 --> 00:33:07,000 ARIZONA HOUSE SPEAKER TO CALL 846 00:33:07,000 --> 00:33:08,000 THE LEGISLATURE INTO SESSION TO HOLD A HEARING BASED ON THEIR 847 00:33:08,000 --> 00:33:09,000 CLMSF ELECTION FRAUD. 848 00:33:09,000 --> 00:33:12,000 >> ABSOLUTELY, AND OFFICIALCT 849 00:33:12,000 --> 00:33:15,000 FOR PRESIDENTO COMMUNICATE 850 00:33:15,000 --> 00:33:19,000 WITH STATES TO DEFEND THE 851 00:33:19,000 --> 00:33:20,000 INTEGRITY OF A FEDERAL ELECTION 852 00:33:20,000 --> 00:33:21,000 AND COMMUNICATE WITH STATE 853 00:33:21,000 --> 00:33:22,000 OFFICIALS AND URGE THEM TO VIEW 854 00:33:22,000 --> 00:33:24,000 WHAT HE VIEWS AS THEIR JOB UNDER 855 00:33:24,000 --> 00:33:26,000 STATE LAW AND FER LAW. 856 00:33:26,000 --> 00:33:29,000 THAT'S AN OFFICIAL ACT. 857 00:33:29,000 --> 00:33:30,000 >> ATTEMPTING TO DEFEND THE 858 00:33:30,000 --> 00:33:31,000 INTEGRITY OF THE ELECTION IS THE 859 00:33:31,000 --> 00:33:33,000 DENSE. 860 00:33:33,000 --> 00:33:34,000 THE ALLEGATIONS THAT HE WAS 861 00:33:34,000 --> 00:33:35,000 ATTEMPTING TO OVERTHROW AN 862 00:33:35,000 --> 00:33:40,000 ELECTION. >> EXACTLY RIGHT A NTHER 863 00:33:40,000 --> 00:33:43,000 ALLEGATION SHOULD MAKE A 864 00:33:43,000 --> 00:33:44,000 DIFFERENCE AS TO WHETHER HE'S 865 00:33:44,000 --> 00:33:47,000 IMMUNE. THAT'S EXTREMELY STRONG WITH 866 00:33:47,000 --> 00:33:51,000 THIS COURT. >> DOES IT STRIKE YOU AS ODD 867 00:33:51,000 --> 00:33:53,000 THAT YOUR UNDERSTANDING OF 868 00:33:53,000 --> 00:33:56,000 IMMUNITY GOES WAY BEYOND WHAT 869 00:33:56,000 --> 00:33:59,000 OLC HAS EVER CLAIMED FOR A 870 00:33:59,000 --> 00:34:00,000 FORMER PRESINT 871 00:34:00,000 --> 00:34:03,000 >> THE OPINIONS HERE ARE STRONG 872 00:34:03,000 --> 00:34:05,000 SUPPORTING US BECAUSE ANY TIME A 873 00:34:05,000 --> 00:34:06,000 CONGRESSIONAL STATUTE GONE 874 00:34:06,000 --> 00:34:07,000 TOUCHING THE PRESIDENT'S 875 00:34:07,000 --> 00:34:09,000 PREROGATIVES, THEY SAID WE WILL 876 00:34:09,000 --> 00:34:11,000 INTERPRET THETATE NARROWLY 877 00:34:11,000 --> 00:34:12,000 TO AVOID IT. >> THAT'S A DIFFERENT QUESTION. 878 00:34:12,000 --> 00:34:17,000 WHAT OLC HAS ALWAYS SAID THAT 879 00:34:17,000 --> 00:34:19,000 SITTING PRESENCE GET IMMUNITY BUT RM PRESIDENT'S? 880 00:34:19,000 --> 00:34:21,000 NO. 881 00:34:21,000 --> 00:34:22,000 THERE MIGHT BE A DIFFERENT 882 00:34:22,000 --> 00:34:25,000 ARGUMENT MADE ABOUT WHETHER A 883 00:34:25,000 --> 00:34:27,000 STATUTE OR WHETH A STATUTE I 884 00:34:27,000 --> 00:34:30,000 APPLIED TO A PARTICULAR CONDUCT 885 00:34:30,000 --> 00:34:33,000 IS PROPERLYVAABLE AGAINST 886 00:34:33,000 --> 00:34:35,000 THE PRESIDENT. 887 00:34:35,000 --> 00:34:36,000 THAT'S A VERY DIFFERENT ARGUMENT 888 00:34:36,000 --> 00:34:38,000 THAN THE IMMUNITY CLAIM THAT YOU 889 00:34:38,000 --> 00:34:40,000 ARE MAKING HERE. 890 00:34:40,000 --> 00:34:42,000 OLC HAS DEFINITIVELY NOT 891 00:34:42,000 --> 00:34:43,000 SUPPORTED THIS. 892 00:34:43,000 --> 00:34:45,000 >> I DON'T KNOW IF I WOULD PUT 893 00:34:45,000 --> 00:34:46,000 IT THAT WAY. 894 00:34:46,000 --> 00:34:47,000 I DON'T RECALL THEM ADDRESSING 895 00:34:47,000 --> 00:34:51,000 IT BUT THERE IS THE LANGUAGE OF 896 00:34:51,000 --> 00:34:53,000 CAS LIKE MARBURY AND 897 00:34:53,000 --> 00:34:55,000 STATEMENTS MADE BY BJAMIN 898 00:34:55,000 --> 00:34:58,000 FRANKLIN AT THE CONSTITUTIONAL 899 00:34:58,000 --> 00:34:59,000 CONVENTION, STATEMENTS OF OR WASHINGTON TALKING ABOUT THE 900 00:34:59,000 --> 00:35:02,000 MASSIVE RISK OF STRIFE AND HOW 901 00:35:02,000 --> 00:35:05,000 THAT COULD DESTROY THE 902 00:35:05,000 --> 00:35:06,000 GOVERNMENT 903 00:35:06,000 --> 00:35:07,000 THAT'S WHAT WE RELY ON 904 00:35:07,000 --> 00:35:09,000 PRCIPALLY. 905 00:35:09,000 --> 00:35:13,000 MY SITTH OLC OPINIONS BECAUSE 906 00:35:13,000 --> 00:35:15,000 IFHERE'S ANY STATUTE THAT 907 00:35:15,000 --> 00:35:18,000 GHT IMPACT ON THE PRESIDENT'S 908 00:35:18,000 --> 00:35:19,000 PREROGATIVES, THEY INTERPRETED 909 00:35:19,000 --> 00:35:20,000 TOVOID THAT. 910 00:35:20,000 --> 00:35:23,000 >> IF A PRESIDENT SELLS NUCLEAR 911 00:35:23,000 --> 00:35:25,000 SEEKERS TO A FOREIGN ADVERSARY, 912 00:35:25,000 --> 00:35:26,000 IS THAT IMMUNE? 913 00:35:26,000 --> 00:35:30,000 >> THAT SOUNDSIMAR TO THE 914 00:35:30,000 --> 00:35:32,000 BRIBERY EXAMPLE AND LIKELY NOT 915 00:35:32,000 --> 00:35:33,000 IMMUNE. 916 00:35:33,000 --> 00:35:35,000 YOU HAVE TO BE IN PEACE AND 917 00:35:35,000 --> 00:35:37,000 CONVICTED FIRST. >> WHAT DOES IT MEAN IIT 918 00:35:37,000 --> 00:35:38,000 STRUCTURED AS AN OFFICIAL ACT? 919 00:35:38,000 --> 00:35:41,000 >> I DON'T KNOW WTHER THAT 920 00:35:41,000 --> 00:35:45,000 WOULD BE AN OFFICIAL ACT. 921 00:35:45,000 --> 00:35:47,000 YOU'D HAVE TO APPLY A DIFFERENT 922 00:35:47,000 --> 00:35:50,000 ANALYSIS. >> HOW ABOUT IF A PRESIDENT 923 00:35:50,000 --> 00:35:52,000 ORDERS THE MILITARY TO STAGE A 924 00:35:52,000 --> 00:35:57,000 COUP? 925 00:35:59,000 --> 00:36:01,000 >> AS THE CHIEF JUSTICE POINTED OUT EARLIE TRE IS A WHOLE 926 00:36:01,000 --> 00:36:03,000 SERIES OF GUIDELINES AGAINST 927 00:36:03,000 --> 00:36:05,000 THAT. 928 00:36:05,000 --> 00:36:10,000 UCMJ PROHIBITS THE ARMY OM 929 00:36:11,000 --> 00:36:12,000 FOLLOWING A PLANE FOR NO LAWFUL 930 00:36:12,000 --> 00:36:15,000 T. 931 00:36:15,000 --> 00:36:16,000 IF ONE ADOPTS THE FITZGERALD 932 00:36:16,000 --> 00:36:21,000 TEST, THAT MIGHT BE IMPEACHED 933 00:36:22,000 --> 00:36:24,000 AND CONVICTED BEFORHES 934 00:36:24,000 --> 00:36:25,000 CRIMINALLY PROSECUTED. 935 00:36:25,000 --> 00:36:28,000 >> THIS PRESIDENT WILL ORDER THE 936 00:36:28,000 --> 00:36:30,000 LITARY TO STAGE A CREW N 937 00:36:30,000 --> 00:36:33,000 LONGER PRESIDENT AND HE UL'T 938 00:36:33,000 --> 00:36:36,000 BE IMPEACHED. 939 00:36:36,000 --> 00:36:37,000 HE ORDERED THE MILITARY TO STAGE 940 00:36:37,000 --> 00:36:39,000 A COUP AND YOU ARE SAYING THAT'S 941 00:36:39,000 --> 00:36:40,000 AN OFFICL T. 942 00:36:40,000 --> 00:36:41,000 THAT'S IMMU. 943 00:36:41,000 --> 00:36:44,000 >> I THINK IT WOULD DEPEND ON 944 00:36:44,000 --> 00:36:45,000 THE CIRCUMSTANCES WHETHER IT WAS 945 00:36:45,000 --> 00:36:46,000 AN OFFICIAL ACT. 946 00:36:46,000 --> 00:36:51,000 >> WHAT DOES THAT MN DEPEND ON 947 00:36:51,000 --> 00:36:53,000 THE CIRCUMANS? HE WAS THE PSIDENT, HE IS THE 948 00:36:53,000 --> 00:36:55,000 COMMANDER-IN-CHIEF. 949 00:36:55,000 --> 00:36:57,000 TALKS TO HIS GENERALS ALL THE 950 00:36:57,000 --> 00:36:59,000 TIME AND HE TOLD THE GENERALS I 951 00:36:59,000 --> 00:37:00,000 DON'T FEEL LIKE LEAVING OFFICE 952 00:37:00,000 --> 00:37:01,000 AND I WANT TO STAGE A COUP. 953 00:37:01,000 --> 00:37:02,000 IS THAT IMMUNE? 954 00:37:02,000 --> 00:37:05,000 >> IF IT'S AN OFFICIAL ACT, 955 00:37:05,000 --> 00:37:06,000 THERE NEEDS TO BE IEAMENT 956 00:37:06,000 --> 00:37:07,000 AND CONVICTION BEFORE AND 957 00:37:07,000 --> 00:37:09,000 BECAUSE THE FRAMERS KNEW THE 958 00:37:09,000 --> 00:37:10,000 RISK. 959 00:37:10,000 --> 00:37:14,000 >>S IN OFFICIAL ACTS? 960 00:37:14,000 --> 00:37:15,000 IS IT AN OFFICIALCT? 961 00:37:15,000 --> 00:37:18,000 >> THE WAY HE DESCRIBED THAT 962 00:37:18,000 --> 00:37:19,000 HYPOTHETICAL, IT COULD WELL BE 963 00:37:19,000 --> 00:37:22,000 BUT I JUST DON'T KNOW. 964 00:37:22,000 --> 00:37:24,000 IT'S A CTPECIFIC CONTACTS. 965 00:37:24,000 --> 00:37:28,000 >> THE ANSWER SOUNDS TO ME IT'S 966 00:37:28,000 --> 00:37:29,000 AN OFFICIAL ACT BUT IT SOUNDS D. 967 00:37:29,000 --> 00:37:30,000 >> IS CERTAINLY SOUNDS VERY BAD 968 00:37:30,000 --> 00:37:34,000 THAT'S WHY THE FRAMERS HAVE A 969 00:37:34,000 --> 00:37:36,000 WHOLE SERIES OF STRUCTURAL 970 00:37:36,000 --> 00:37:40,000 CHECKS THAT HAVE SUCCESSFULLY 971 00:37:40,000 --> 00:37:41,000 PREVENTED THAT VERY KIND OF 972 00:37:41,000 --> 00:37:43,000 EXTREME HYPOTHETICAL. 973 00:37:43,000 --> 00:37:44,000 THAT IS THE WISDOM OF THE 974 00:37:44,000 --> 00:37:46,000 FRAMERS. 975 00:37:46,000 --> 00:37:48,000 THERE IS A RISK THAT NEED TBE 976 00:37:48,000 --> 00:37:49,000 GUARDED AGAINST WAS NOT THE 977 00:37:49,000 --> 00:37:50,000 NOTION THEREDENT MIGHT 978 00:37:50,000 --> 00:37:52,000 ESCAPE METAL PROSECUTION FOR 979 00:37:52,000 --> 00:37:57,000 SOMETHING VERY UNLIKELY. 980 00:37:58,000 --> 00:37:59,000 IS MUCH MORE LIKELY INSTRUCTED 981 00:37:59,000 --> 00:38:01,000 TO THE PUBLIC, THE REST -- THE 982 00:38:01,000 --> 00:38:04,000 RISK -- >> THE FRAMERS DID NOT PUT AN 983 00:38:04,000 --> 00:38:06,000 IMMUNITY CLAUSE INTO THE 984 00:38:06,000 --> 00:38:09,000 CONSTITUTION. THERE ONCE THERE WAS SOME 985 00:38:09,000 --> 00:38:11,000 MUNITY CLAUSES AND STATE 986 00:38:11,000 --> 00:38:12,000 CONSTITUTIONS BUT THEY DI'T 987 00:38:12,000 --> 00:38:13,000 PROVIDE IMMUNITY TO THE 988 00:38:13,000 --> 00:38:14,000 PRESIDENT. 989 00:38:14,000 --> 00:38:16,000 NOT SO SURPRISING, THEY WERE 990 00:38:16,000 --> 00:38:18,000 REACTING AGAIN A MONARCH WHO 991 00:38:18,000 --> 00:38:20,000 CLAIMS TO BE ABOVE THE LAW. 992 00:38:20,000 --> 00:38:21,000 WASN'T THE WHOLE POI TT THE 993 00:38:21,000 --> 00:38:24,000 PRESIDENT WAS NOT A MONARCH ON 994 00:38:24,000 --> 00:38:25,000 THE PRIDT WAS NOT SUPPOSED TO BE ABOVE THE LAW? 995 00:38:25,000 --> 00:38:30,000 >> TY DID PUT IN IMMUNITY 996 00:38:33,000 --> 00:38:35,000 CLAUSE, THE EXECUTIVE ACTION 997 00:38:35,000 --> 00:38:38,000 CLOSE -- CLAUSE WHICH SET RT 998 00:38:38,000 --> 00:38:41,000 IN BROAD LANGUAGE MARBURY 999 00:38:41,000 --> 00:38:43,000 AGAINST MADISON. 1000 00:38:43,000 --> 00:38:45,000 THEY ALSO DISCUSSED AND CONSIDEREDHAWOULD BE THE 1001 00:38:45,000 --> 00:38:47,000 CHECKS ON THE PREDEY AND 1002 00:38:47,000 --> 00:38:49,000 THEY DID NOT SAY HE HAD CRIMINAL 1003 00:38:49,000 --> 00:38:51,000 PRECION AT THE 1004 00:38:51,000 --> 00:38:52,000 CONSTITUON CONVENTION. 1005 00:38:52,000 --> 00:38:56,000 NJAMIN FRANKLIN SAID THAT WAS 1006 00:38:56,000 --> 00:39:01,000 NOT THERE. 1007 00:39:02,000 --> 00:39:03,000 >> THANK. 1008 00:39:03,000 --> 00:39:05,000 >> JUSTICE GORSUCH? 1009 00:39:05,000 --> 00:39:08,000 >> RETURNING TO THE CHIEF 1010 00:39:08,000 --> 00:39:12,000 JUSTICE'S HYPOTHETICAL ABOUT THE 1011 00:39:12,000 --> 00:39:14,000 AMBASSADOR SALE IN BRIBERY. 1012 00:39:14,000 --> 00:39:16,000 CONGRESS HAS A STATUTE THAT 1013 00:39:16,000 --> 00:39:18,000 NAMES THE PRESIDENT AND SAYS HE 1014 00:39:18,000 --> 00:39:23,000 CAN BE CRIMINALLY PROSECUTED FOR 1015 00:39:23,000 --> 00:39:25,000 BRIBERY PRESUMABLY AFTER HE 1016 00:39:25,000 --> 00:39:30,000 LEAVES OFFICE. 1017 00:39:30,000 --> 00:39:31,000 OUTSIDE THE CORE ARE T JUSTICE KAVANAUGH WAS TALKING 1018 00:39:31,000 --> 00:39:34,000 ABOUT, WHEN CONGRESS SPEAKS 1019 00:39:34,000 --> 00:39:37,000 CLEARLY, COULDN'T A STATUTE LIKE 1020 00:39:37,000 --> 00:39:39,000 THAT, COULDN'T CONGRESS PROVIDE 1021 00:39:39,000 --> 00:39:41,000 A STATUTE LIKE THAT THAT WOULD 1022 00:39:41,000 --> 00:39:43,000 ALLOW WHOLE MANNER OF EVIDENCE 1023 00:39:43,000 --> 00:39:44,000 TO COME IN TO OVTHE CASE? 1024 00:39:44,000 --> 00:39:47,000 >> O POSITION IS THAT WOULD 1025 00:39:47,000 --> 00:39:49,000 HAVE TO BE IN ON OFFICIAL ACT, 1026 00:39:49,000 --> 00:39:50,000 PULYRIVATE CONDUCT FOR THE 1027 00:39:50,000 --> 00:39:51,000 PROSECUTION TO GOORWARD. 1028 00:39:51,000 --> 00:39:55,000 >> BUT OUTSIDE THE CORE AREAS OF 1029 00:39:55,000 --> 00:39:56,000 EXUTE POWER, IF THERE IS A 1030 00:39:56,000 --> 00:39:58,000 CLEAR STATEMENT FROM CONGRESS 1031 00:39:58,000 --> 00:40:00,000 THAT SOMETHING IS UNLAWFUL AND 1032 00:40:00,000 --> 00:40:02,000 IT APPLIES TO E PRESIDENTI'M 1033 00:40:02,000 --> 00:40:03,000 STRUGGLING TO SEE WHY IN THAT 1034 00:40:03,000 --> 00:40:07,000 CASE PERHAPS THE EVIDENCE COULD 1035 00:40:07,000 --> 00:40:12,000 COME IN. >> THE STRONGEST POSSIBLE CASES 1036 00:40:12,000 --> 00:40:17,000 WHAT YOU DESCRIBED DCRE AS THE CORE EXECUTIVE POWERS. 1037 00:40:17,000 --> 00:40:22,000 THE HOLDING -- THIS DOESN'T TURN 1038 00:40:23,000 --> 00:40:25,000 ON HOW CENTRAL AND LEGISLATIVE ACT IS. 1039 00:40:25,000 --> 00:40:27,000 IT'S AN UNOFFICIAL ACT WCH 1040 00:40:27,000 --> 00:40:28,000 APPLIES TO THE OUTER PERIMETER 1041 00:40:28,000 --> 00:40:30,000 OF THE FITZGERALD. 1042 00:40:30,000 --> 00:40:34,000 >> WHAT WOULD HAPPEN IF 1043 00:40:34,000 --> 00:40:36,000 PRESIDENTS WERE UNDER FEAR THAT 1044 00:40:36,000 --> 00:40:39,000 THEIR SUCCESSORS WOULD 1045 00:40:39,000 --> 00:40:43,000 CRIMINALLY PROSECUTE TM R THEIR ACTS IN OFFICE, WHETHER 1046 00:40:43,000 --> 00:40:44,000 THEY ARE ENGAGED IN DRONE 1047 00:40:44,000 --> 00:40:46,000 STRIKES, YOU KNOW ALL THE 1048 00:40:46,000 --> 00:40:49,000 HYPOTHETICALS. IT SEEMS LIKE ONE OF THE 1049 00:40:49,000 --> 00:40:50,000 INCENTIV TT MIGHT BE CREATED 1050 00:40:50,000 --> 00:40:53,000 IS FOR PRESIDENTS TO TRY TO 1051 00:40:53,000 --> 00:40:55,000 PARDON THEMSELVES. 1052 00:40:55,000 --> 00:40:56,000 DO YOUAVE ANY THOUGHTS ABOUT 1053 00:40:56,000 --> 00:41:00,000 THAT? >> I DIDN'T THINK ABOUT IT UNTIL 1054 00:41:00,000 --> 00:41:02,000 YOU ASKED IT. 1055 00:41:02,000 --> 00:41:05,000 THAT MIGHT BE CREATED. >> WE'VE NEVER ANSWERED WHETHER 1056 00:41:05,000 --> 00:41:08,000 A PRESIDENT CAN DO THAT. 1057 00:41:08,000 --> 00:41:09,000 HAPPILY, IT'S NEVER BEEN PRESENTED TO US. 1058 00:41:09,000 --> 00:41:14,000 >> IF THAT REMAINS IN PLACE, 1059 00:41:14,000 --> 00:41:15,000 THAT WILL LIKELY REMAIN THE 1060 00:41:15,000 --> 00:41:17,000 CASE. 1061 00:41:17,000 --> 00:41:19,000 IN FITZGERALD, IT EMPHASIZED THE 1062 00:41:19,000 --> 00:41:22,000 REAL CONCERN OF BEING BOLD AND 1063 00:41:22,000 --> 00:41:23,000 FEARLESS ACTION. 1064 00:41:23,000 --> 00:41:24,000 IS THE PRESIDENT GOING TO HAVE 1065 00:41:24,000 --> 00:41:26,000 TO MAKE A CONTROVERSIAL DISN 1066 00:41:26,000 --> 00:41:28,000 WHERE HIS POLITICAL OPPONENTS 1067 00:41:28,000 --> 00:41:29,000 WILL COME AFTER HIM THAT MINUTE 1068 00:41:29,000 --> 00:41:33,000 HE LEAVES OFFICE? WILL THAT DAMPEN THE ARDOR OF 1069 00:41:33,000 --> 00:41:35,000 THAT PRESIDENT TO DO IT R 1070 00:41:35,000 --> 00:41:37,000 CONSTITUTIONAL STRUCTURE DEMANDS 1071 00:41:37,000 --> 00:41:38,000 OF HIM OR HER WHICH IS BOLD AND 1072 00:41:38,000 --> 00:41:39,000 FEARLESS ACTION IN THE FACE OF 1073 00:41:39,000 --> 00:41:40,000 CONTROVERSY. 1074 00:41:40,000 --> 00:41:43,000 >> PERHAPS IF HE FEELS HE HAS 1075 00:41:43,000 --> 00:41:44,000 TO, HE WILL PARDON HIMSELF EVERY 1076 00:41:44,000 --> 00:41:45,000 FOUR YEARS NOW. 1077 00:41:45,000 --> 00:41:49,000 >> AS THE COURT POINTED OUT, 1078 00:41:49,000 --> 00:41:50,000 THAT WOULDN'T PROVIDE SECURITY 1079 00:41:50,000 --> 00:41:51,000 BECAUSE THE LEGALITY OF THAT IS 1080 00:41:51,000 --> 00:41:52,000 SOMETHING THAT'S NEVER BEEN 1081 00:41:52,000 --> 00:41:56,000 ADDRESSED. >> IN ADDITION TO IMPEACHMENT 1082 00:41:56,000 --> 00:41:57,000 AT YOUISSSED HIS 1083 00:41:57,000 --> 00:41:59,000 SUPPORTIVE LIABILITY. 1084 00:41:59,000 --> 00:42:01,000 YOU DON'T CONTEST THAT EVERYBODY 1085 00:42:01,000 --> 00:42:06,000 FOOWG AN UNLAWFUL ORDER CAN 1086 00:42:06,000 --> 00:42:09,000 BE IMMEDIATELY PROSECUTED, CAN 1087 00:42:09,000 --> 00:42:11,000 -- DO YOU? 1088 00:42:11,000 --> 00:42:12,000 IF THE PRESIDENT GIVES AN 1089 00:42:12,000 --> 00:42:16,000 UNLAWFUL OER, CALL IN THE 1090 00:42:16,000 --> 00:42:18,000 TROOPS IN THE EXAMPLES WE'VE 1091 00:42:18,000 --> 00:42:22,000 HEARD, EVERY SUBORDINATE FACES 1092 00:42:22,000 --> 00:42:23,000 CRIMINAL PROSECUTION, DON'T THEY 1093 00:42:23,000 --> 00:42:28,000 >> THAT IS WHAT IT WAS SAID AT 1094 00:42:28,000 --> 00:42:33,000 THE CONSTITUTIONAL CONVENTION. 1095 00:42:33,000 --> 00:42:34,000 TH WLD HAVE TO BE A STATUTE 1096 00:42:34,000 --> 00:42:35,000 THAT WOU CER FOR THEM TO BE 1097 00:42:35,000 --> 00:42:37,000 PROSECUTED. 1098 00:42:37,000 --> 00:42:39,000 WE'VE GOT LOTS OF STATUS. 1099 00:42:39,000 --> 00:42:40,000 E CRIMINAL LAW BOOKS ARE 1100 00:42:40,000 --> 00:42:44,000 REPLETE. 1101 00:42:44,000 --> 00:42:45,000 IS THAT ONE CHECK THAT'S 1102 00:42:45,000 --> 00:42:46,000 AVAILABLE? 1103 00:42:46,000 --> 00:42:51,000 >> IF THAT STATUTEAS DOING 1104 00:42:52,000 --> 00:42:53,000 WHAT MARBURY SAYS Y C'T DO 1105 00:42:53,000 --> 00:42:55,000 WHICH IS GOING AFTER THE 1106 00:42:55,000 --> 00:42:59,000 SUBORDINATES, THE FRANKLIN CLEAR 1107 00:42:59,000 --> 00:43:00,000 STATEMENT ROLE MIGHT BE EMPLOYED 1108 00:43:00,000 --> 00:43:01,000 AND YOU MIGHT NOT ABLE TO GO 1109 00:43:01,000 --> 00:43:03,000 AFTER THAT PRESIDENT. 1110 00:43:03,000 --> 00:43:06,000 I DON'T THK NGRESS SAYS WE 1111 00:43:06,000 --> 00:43:07,000 CAN GO AFTER THE PRESIDENT BUT 1112 00:43:07,000 --> 00:43:10,000 WE C CCK OUT THE PRESIDENT 1113 00:43:10,000 --> 00:43:12,000 TALK T CONGRESS AND WE WILL PUT 1114 00:43:12,000 --> 00:43:14,000 IN CRIMINAL STATUE THAT SAYS 1115 00:43:14,000 --> 00:43:15,000 IF YOU PROVIDE FALSE INFORMATION 1116 00:43:15,000 --> 00:43:18,000 TO CONGRESS, IN CARRYING OUT THE 1117 00:43:18,000 --> 00:43:19,000 PRESENT RECOGNITIO POWERS, YOU 1118 00:43:19,000 --> 00:43:21,000 CAN BE PROSECUTED. 1119 00:43:21,000 --> 00:43:22,000 THAT WOULD BE A DIFFICULT 1120 00:43:22,000 --> 00:43:24,000 QUESTION. THE FUNDAMENTAL POINT OF DRAWING 1121 00:43:24,000 --> 00:43:29,000 AT DISTITI IS AN EXCELLENT 1122 00:43:30,000 --> 00:43:34,000 DISTINCTION. 1123 00:43:34,000 --> 00:43:37,000 TO FOLLOW UP ON THE OLC 1124 00:43:37,000 --> 00:43:40,000 OPINION QUESTION, THEY 1125 00:43:40,000 --> 00:43:41,000 ARTICULATE A CLEAR STATEMENT 1126 00:43:41,000 --> 00:43:44,000 RULE AS TO THIS COURT'S CASE FOR 1127 00:43:44,000 --> 00:43:49,000 COVERING OFFICIAL ACTS. 1128 00:43:50,000 --> 00:43:54,000 NONE OF THE STATUTES CITED HERE 1129 00:43:54,000 --> 00:43:55,000 HAVE A CLEAR STATEMENT COVERING 1130 00:43:55,000 --> 00:43:57,000 THE PRESIDENT, THEREFORE MEANING 1131 00:43:57,000 --> 00:44:00,000 THE PRIDT CANNOT BE CHARGED 1132 00:44:00,000 --> 00:44:02,000 FOR ANY OFFICIAL ACTS UNDER THE 1133 00:44:02,000 --> 00:44:03,000 STATUTES. 1134 00:44:03,000 --> 00:44:05,000 >> THAT'S ABSOLUTELY CORRECT. 1135 00:44:05,000 --> 00:44:09,000 >> TH'S SEPARATE FROM WHAT'S 1136 00:44:09,000 --> 00:44:11,000 FIAL VERSUS WHAT'S PERSONAL. 1137 00:44:11,000 --> 00:44:12,000 FOR THE BUCKET THAT IS OFFICIAL, 1138 00:44:12,000 --> 00:44:14,000 THERE IS NO CLEAR STATEMENT 1139 00:44:14,000 --> 00:44:15,000 PERIOD? 1140 00:44:15,000 --> 00:44:19,000 >> AS TO PRIVATE CONDUCT, WE 1141 00:44:19,000 --> 00:44:21,000 DON'T THINK THE CLEAR STATEMENT 1142 00:44:21,000 --> 00:44:22,000 RULE WOULD BE INVOKED. 1143 00:44:22,000 --> 00:44:24,000 THESE STATUTES IN THE IIT-- 1144 00:44:24,000 --> 00:44:27,000 IN THE INDICTMENT ARE FAR AFIELD 1145 00:44:27,000 --> 00:44:29,000 TO CRIMINALIZE IN CLEAR TERMS 1146 00:44:29,000 --> 00:44:34,000 THE PRESE'S OFFICIAL ACTS. >> JUST TO CLARIFY THIS, THE 1147 00:44:34,000 --> 00:44:37,000 PRESIDENTS NOT ABO T LAW AND 1148 00:44:37,000 --> 00:44:39,000 THE PRESIDENT IS NOT A KING AND 1149 00:44:39,000 --> 00:44:41,000 THE FOUNDERS THOUGHT THAT. 1150 00:44:41,000 --> 00:44:44,000 IN RESPOE THAT, T 1151 00:44:44,000 --> 00:44:45,000 PRESIDENT IS SUBJECT TO 1152 00:44:45,000 --> 00:44:46,000 PROSECIOFOR ALL PERSONAL 1153 00:44:46,000 --> 00:44:48,000 ACTS JUST LIKE EVERY OTHER 1154 00:44:48,000 --> 00:44:52,000 AMERICAN. 1155 00:44:52,000 --> 00:44:54,000 THE QUESTION IS ASKED TAKEN IN 1156 00:44:54,000 --> 00:44:59,000 HER OFFICIAL CAPACITY. >> THERE WOULD BE A WHOLE SERIES 1157 00:45:00,000 --> 00:45:02,000 OF STRUCTURAL CHANGES IN 1158 00:45:02,000 --> 00:45:04,000 ADDITI TTHAT WISH TO TERROR 1159 00:45:04,000 --> 00:45:08,000 AND HAS DERD PERFECT 1160 00:45:08,000 --> 00:45:11,000 PRESIDENTI MH MALFEASANCE FOR 200 YEARS. 1161 00:45:11,000 --> 00:45:12,000 >> ON THE SOURCE OF IMMUNITY, DO 1162 00:45:12,000 --> 00:45:14,000 NOT EXPLIT CONSTITUTION BUT 1163 00:45:14,000 --> 00:45:15,000 EXECUTIVE PRIVILEGE IS NOT 1164 00:45:15,000 --> 00:45:18,000 EXPLICIT IN THE CONSTITUTION YET 1165 00:45:18,000 --> 00:45:19,000 IN UNITED STATES VERSUS NIXON, 1166 00:45:19,000 --> 00:45:22,000 THE COURT UNANIMOUSLY SAID THE 1167 00:45:22,000 --> 00:45:24,000 ARTICLE TO EXECUTIVE POWER IN THE CONSTITUTION ENCOMPASSED 1168 00:45:24,000 --> 00:45:27,000 EXECUTIVERILEGE IN THE SAME 1169 00:45:27,000 --> 00:45:29,000 PRINPLPRESUMABLY WOULD APPLY 1170 00:45:29,000 --> 00:45:32,000 TO EXECUTIVE IMMUNITY BEING THE 1171 00:45:32,000 --> 00:45:34,000 COMPASS WHICH IN -- WITHITH 1172 00:45:34,000 --> 00:45:37,000 EXECUTIVE POWERS. >> THAT'S COECAND THERE'S A 1173 00:45:37,000 --> 00:45:40,000 TELLING PASSAGE WHERE THIS UR 1174 00:45:40,000 --> 00:45:41,000 TALKED ABOUT THERE IS A LETTER 1175 00:45:41,000 --> 00:45:42,000 FROM JAMES MADISON TO THOMAS 1176 00:45:42,000 --> 00:45:44,000 JEFFERN THE TIME OF THE 1177 00:45:44,000 --> 00:45:49,000 FOUNDING WHERE MADISON SAID TY 1178 00:45:49,000 --> 00:45:52,000 DID NOT EXPRESSLY TAKE AWAY REMOVAL POWER. 1179 00:45:52,000 --> 00:45:56,000 IF THE ORIGINAL UNDERSTANDING IS 1180 00:45:56,000 --> 00:45:58,000 THAT T CUSE BROAD ENOUGH, IT 1181 00:45:58,000 --> 00:46:01,000 HAS TO BE TAKEN AWAY WHICH IS THE OPPOSITE OF RESUMPTION THEY 1182 00:46:01,000 --> 00:46:02,000 ARE ADVANCING HERE. 1183 00:46:02,000 --> 00:46:04,000 >> LASTLY, I THINK YOU'VE 1184 00:46:04,000 --> 00:46:05,000 ACKNOWLEDGED IN RESPONSE T 1185 00:46:05,000 --> 00:46:07,000 OTHER QUESTIONS THAT SOME OF THE 1186 00:46:07,000 --> 00:46:09,000 ACTS IN THE IICTMENT ARE 1187 00:46:09,000 --> 00:46:11,000 PRIVATE IN YOUR VIEW IS THAT 1188 00:46:11,000 --> 00:46:13,000 SOME ARE OFFICIAL. 1189 00:46:13,000 --> 00:46:16,000 IS IT YOUR POSITION THAT THAT AN 1190 00:46:16,000 --> 00:46:18,000 ANALYSIS OF WHICH SHOULD BE 1191 00:46:18,000 --> 00:46:20,000 UNDERTAKEN IN THE FIRST INSTANCE 1192 00:46:20,000 --> 00:46:21,000 BY THE D.C. CIRCUIT JUDGE THE 1193 00:46:21,000 --> 00:46:22,000 DISTRI CRT? 1194 00:46:22,000 --> 00:46:25,000 >> MOST LIKELY A DISTRICT COURT 1195 00:46:25,000 --> 00:46:27,000 UNDER THE LOGIC OF ANDERSON. >> THANK YOU. 1196 00:46:27,000 --> 00:46:30,000 >> YOU'VE ARGUED THAT THE 1197 00:46:30,000 --> 00:46:33,000 IMPEACHMENT CLAUSE SUGGESTS OR 1198 00:46:33,000 --> 00:46:36,000 ACQUIRES IMPEACHMENT TO BE A 1199 00:46:36,000 --> 00:46:37,000 GATEWAY TO CRIMINAL PROSECUTION, RIGHT? 1200 00:46:37,000 --> 00:46:39,000 >> I THINK THAT'THE PLAIN 1201 00:46:39,000 --> 00:46:40,000 MEANING OF THE SECOND PHSEN 1202 00:46:40,000 --> 00:46:43,000 THE CLAUSE. >> THERE AY OTHER PEOPLE 1203 00:46:43,000 --> 00:46:45,000 WHO AREUBCT TO IMPEACHMENT 1204 00:46:45,000 --> 00:46:46,000 INCLUDE NINE SITTING ON 1205 00:46:46,000 --> 00:46:47,000 THIS BENCH. 1206 00:46:47,000 --> 00:46:49,000 DON'T THINK ANYONE HAS EVER 1207 00:46:49,000 --> 00:46:51,000 SUGGESTED THAT IMPEACHMENT WOULD 1208 00:46:51,000 --> 00:46:52,000 HAVE TO BE THE GATEWAY TO 1209 00:46:52,000 --> 00:46:53,000 CRIMINAL PROSECUTION F ANY OF 1210 00:46:53,000 --> 00:46:56,000 THE MANY OTHER OFFICERS SUBJECT 1211 00:46:56,000 --> 00:46:59,000 TO IMPEACHMENT. WHY IS THE PRESIDENT DIFFERENT 1212 00:46:59,000 --> 00:47:00,000 WHEN THE IMPEACHMENT CLAUSE 1213 00:47:00,000 --> 00:47:03,000 DOESN'T SAY SO? >> SOMEONE HOW IMPORTANT HAS 1214 00:47:03,000 --> 00:47:08,000 MADE THE OPPOSITE SUGGESTION. 1215 00:47:11,000 --> 00:47:16,000 THE SOLICITOGERAL BORG 1216 00:47:16,000 --> 00:47:18,000 REVIEWED THE HISTORICAL MATERIALS OF THE SEQUENCE IS 1217 00:47:18,000 --> 00:47:21,000 MANDATORY ONLY AS TO THE ESENT. 1218 00:47:21,000 --> 00:47:23,000 THAT IS THE DOJ VIEW OF THE 1219 00:47:23,000 --> 00:47:24,000 PEHMENT JUDGMENT CLAUSE 1220 00:47:24,000 --> 00:47:27,000 WHICH IS EXACTLY OUR POSITION. 1221 00:47:27,000 --> 00:47:29,000 THE SEQUENCE IS MANDATORY ONLY 1222 00:47:29,000 --> 00:47:34,000 FOR THE PRESIDENT. 1223 00:47:34,000 --> 00:47:36,000 THIS CONTRADICTS THE PLAIN 1224 00:47:36,000 --> 00:47:37,000 LANGUAGE OF THE CSTUTION AND 1225 00:47:37,000 --> 00:47:40,000 100 YEARS OF HISTORY. 1226 00:47:40,000 --> 00:47:42,000 DOJ ADMITS THE FRAMERS INTENT. 1227 00:47:42,000 --> 00:47:43,000 WE THINK THAT PRACTICE SHOULD 1228 00:47:43,000 --> 00:47:46,000 NOT BE EXTENDED IN THIS CONTEXT. 1229 00:47:46,000 --> 00:47:51,000 >> WHAT IF CRIMINAL INTENT IS 1230 00:47:51,000 --> 00:47:53,000 NOT DISCOVERED UNTIL AFTER 1231 00:47:53,000 --> 00:47:57,000 PRESIDENT ISUTF OFFICE? >> THE FRARS ASSUMED THE RISK 1232 00:47:57,000 --> 00:47:58,000 OF UNDER ENFORCEMENT BY 1233 00:47:58,000 --> 00:48:03,000 CONSTRUCTING THESE CHECKS. 1234 00:48:06,000 --> 00:48:07,000 THIS WAY WE DO NOT LOSE BEY. 1235 00:48:07,000 --> 00:48:09,000 >>HE SPECIAL COUNSEL MAKES A 1236 00:48:09,000 --> 00:48:10,000 POT WHICH IS PRETTY 1237 00:48:10,000 --> 00:48:11,000 COMPELLING. 1238 00:48:11,000 --> 00:48:13,000 YOU ADMIT THAT IF THE PRESIDENT 1239 00:48:13,000 --> 00:48:15,000 WERE SUCCESSFULLY IN PEACE, HE 1240 00:48:15,000 --> 00:48:18,000 COULD BE TERMINAL -- CRIMINALLY 1241 00:48:18,000 --> 00:48:22,000 PROSECUTED AFTER IMPEACHMENT? >> ASSUMING THE PROSECUTION WAS 1242 00:48:22,000 --> 00:48:25,000 CENTERING ON THE TIME OF TH 1243 00:48:25,000 --> 00:48:28,000 OFFENSES. >> GRANTED. 1244 00:48:28,000 --> 00:48:31,000 YOU ALSO SAY THESE CRIMINAL 1245 00:48:31,000 --> 00:48:34,000 ATUTES EXPLICITLY MENTION THE 1246 00:48:34,000 --> 00:48:35,000 PRESIDENT BUT DON'T APPLY TO 1247 00:48:35,000 --> 00:48:36,000 M. 1248 00:48:36,000 --> 00:48:37,000 HOW CAN YOU SAY HE WOULD BE 1249 00:48:37,000 --> 00:48:40,000 IMPEACHMENT WHILE AT THE SAME 1250 00:48:40,000 --> 00:48:42,000 TIME SAYING HE IS EXEMPT FROM 1251 00:48:42,000 --> 00:48:43,000 THESE CRIMINAL STATE 1252 00:48:43,000 --> 00:48:48,000 >> THE A STATUTES 1253 00:48:48,000 --> 00:48:50,000 >> TWO OTHE. 1254 00:48:50,000 --> 00:48:52,000 >> THEY HAVEN'T DONE A 1255 00:48:52,000 --> 00:48:55,000 COMPREHENSIVE REVIEW. 1256 00:48:55,000 --> 00:49:00,000 UNDER FRANKLIN, IT'S NOT A MAGIC 1257 00:49:02,000 --> 00:49:06,000 WORD REQUIRENT MORE FUNDAMENTALLY, THEY CAN SEE 1258 00:49:06,000 --> 00:49:09,000 THERE ARSTUTES THAT EXIST. 1259 00:49:09,000 --> 00:49:10,000 MUCHCHMENT CAN OCCUR AS A 1260 00:49:10,000 --> 00:49:13,000 RESULT OF PRIVATE CONDUCT. 1261 00:49:13,000 --> 00:49:15,000 THE JUDGMENT CLAUSE, IT DOES 1262 00:49:15,000 --> 00:49:16,000 SIGNIFICANT WORK BY AUTHORIZING 1263 00:49:16,000 --> 00:49:18,000 THE SUBSEQUENT PROSECUTION OF A 1264 00:49:18,000 --> 00:49:21,000 PRESIDENT. 1265 00:49:21,000 --> 00:49:22,000 WHAT THE FRAMERS WERE DISCUSSING 1266 00:49:22,000 --> 00:49:23,000 IN THE CONVENTION S NCERNS 1267 00:49:23,000 --> 00:49:25,000 ABOUT PRIVATE CONDUCT. 1268 00:49:25,000 --> 00:49:30,000 >> PICK JTICE KAGAN'S 1269 00:49:30,000 --> 00:49:31,000 EXPLOF A PRESIDENT WHO 1270 00:49:31,000 --> 00:49:33,000 ORDERS A COUP, LET'S IMAGINE HE 1271 00:49:33,000 --> 00:49:35,000 IS IED AND CONVICTED FOR 1272 00:49:35,000 --> 00:49:37,000 ORDERING THAT COUP AND LET'S 1273 00:49:37,000 --> 00:49:39,000 ACCEPT FOR THE SAKE OF ARGUMENT YOUR POSITION THAT THAT WAS 1274 00:49:39,000 --> 00:49:40,000 OFFICIAL CONDUCT. 1275 00:49:40,000 --> 00:49:42,000 YOU ARE SAYING HE COULD BE 1276 00:49:42,000 --> 00:49:44,000 POSITIVE FOR THAT EVEN AFTER 1277 00:49:44,000 --> 00:49:45,000 CONVICTION AND IMPEACHMENT 1278 00:49:45,000 --> 00:49:48,000 PROCEEDINGS? IF THERE IS NOT A STATUTE THAT 1279 00:49:48,000 --> 00:49:50,000 EXPRESSLY REFENC THE 1280 00:49:50,000 --> 00:49:52,000 PRESIDENT AND ME CRIMINAL 1281 00:49:52,000 --> 00:49:55,000 FOR THE PRESIDENT? >> TREOULD HAVE TO BE A 1282 00:49:55,000 --> 00:49:56,000 STATUTE THAT MADE A CLEAR 1283 00:49:56,000 --> 00:49:59,000 STEMENT THAT CONGRESS HAS TO 1284 00:49:59,000 --> 00:50:00,000 REGULATE THE PRESIDENT'S 1285 00:50:00,000 --> 00:50:01,000 CONDUCT. >> THANK YOU. 1286 00:50:01,000 --> 00:50:02,000 >> JUSTICE JACKSON? 1287 00:50:02,000 --> 00:50:07,000 >> I NOW UNDERANBETTER YOUR 1288 00:50:07,000 --> 00:50:08,000 POSITION IN YOUR DISCUSSNS 1289 00:50:08,000 --> 00:50:11,000 WITH JUSTICE KAVANAUGH. 1290 00:50:11,000 --> 00:50:12,000 BAME CLEAR YOU ARE SAYING 1291 00:50:12,000 --> 00:50:14,000 THAT FOR TVATE ACTS OF A 1292 00:50:14,000 --> 00:50:16,000 ESIDENT, THERE IS NO IMMUNITY 1293 00:50:16,000 --> 00:50:18,000 BUT FOR THE OFFICIAL ACTS OF THE 1294 00:50:18,000 --> 00:50:19,000 PRESIDENT THERE IS IMMUNITY. 1295 00:50:19,000 --> 00:50:20,000 IS THAT YOUR POSITION? 1296 00:50:20,000 --> 00:50:21,000 >> I AGREE WITH THAT. 1297 00:50:21,000 --> 00:50:25,000 >> ONE THIT OCCURS TO ME 1298 00:50:25,000 --> 00:50:28,000 IS THAT THIS SORT OF DIFCU 1299 00:50:28,000 --> 00:50:29,000 LINE DRAWING PROBLEM WE ARE 1300 00:50:29,000 --> 00:50:33,000 HAVING WITH THESEYPHETICALS 1301 00:50:33,000 --> 00:50:35,000 IS IT A PRIVATE ACTOR REPUBLIC ACT? 1302 00:50:35,000 --> 00:50:36,000 IT'S BEING THIS ACETA IT BY 1303 00:50:36,000 --> 00:50:40,000 THAT ASSUMPTION. 1304 00:50:40,000 --> 00:50:42,000 IF OFFICIAL ACTS DID T GET 1305 00:50:42,000 --> 00:50:43,000 ABSOLUTE IMMUNITY, IT WOULDN'T 1306 00:50:43,000 --> 00:50:46,000 MATTER, WE WOULDN'T HAVE TO 1307 00:50:46,000 --> 00:50:47,000 IDTI WHICH ARE PRIVATE AND WHICH ARE PUBLIC, CORRECT? 1308 00:50:47,000 --> 00:50:50,000 >> THAT IS THE APPROACH OF THE 1309 00:50:50,000 --> 00:50:53,000 D.C. CIRCUIT JUDGE>O THE 1310 00:50:53,000 --> 00:50:55,000 EXTENT WERE WORRIED ABOUT HOW 1311 00:50:55,000 --> 00:50:56,000 FIGURE OUT WHETHER IT'S PRIVATE 1312 00:50:56,000 --> 00:50:58,000 OR PUBLIC ON THE WE HAVE TO 1313 00:50:58,000 --> 00:50:59,000 UNDERSTAND WE ARE ONLY DOING 1314 00:50:59,000 --> 00:51:02,000 THAT BECAUSE OF AN UNDERLYING 1315 00:51:02,000 --> 00:51:03,000 ASSUMPTION THAT THE PUBLIC ACTS 1316 00:51:03,000 --> 00:51:05,000 GET IMMUNITY. 1317 00:51:05,000 --> 00:51:08,000 LET ME EXPLORE THAT ASSUMPTION. 1318 00:51:08,000 --> 00:51:12,000 WHY IS IT AS A MATTER OF THEORY 1319 00:51:12,000 --> 00:51:16,000 THAT THE PRESIDENT WOULD NOT BE 1320 00:51:16,000 --> 00:51:19,000 REQUIRED TO FOLLOW THE LAW WHEN 1321 00:51:19,000 --> 00:51:20,000 HE IS PERFORMING HIS OFFICIAL 1322 00:51:20,000 --> 00:51:22,000 ACTS? 1323 00:51:22,000 --> 00:51:23,000 EVERYONE ELSE, THERE AREOF 1324 00:51:23,000 --> 00:51:27,000 FOLKS WHO HAD VERY HIGH-POWERED 1325 00:51:27,000 --> 00:51:28,000 JOBS TO MAKE A LOT OF 1326 00:51:28,000 --> 00:51:29,000 NSEQUENTIAL DECISIONS AND THEY 1327 00:51:29,000 --> 00:51:33,000 DO SO AGAINST A BACKDROP OF 1328 00:51:33,000 --> 00:51:35,000 POTENTIAL CRIMINAL PROSECUTION 1329 00:51:35,000 --> 00:51:39,000 IF THEY SHOULD BREAK THE LAW IN 1330 00:51:39,000 --> 00:51:40,000 THAT CAPACITY. 1331 00:51:40,000 --> 00:51:44,000 WE UNDERSTAND AND WE KNOW THAT 1332 00:51:44,000 --> 00:51:45,000 THE VISION OTHUNITED STATES 1333 00:51:45,000 --> 00:51:46,000 HAS THE BEST LAWYERS IN THE 1334 00:51:46,000 --> 00:51:47,000 WO 1335 00:51:47,000 --> 00:51:49,000 WHEN HE IS MAKING A DECISION, HE 1336 00:51:49,000 --> 00:51:51,000 N CONSULT WITH PRETTY MUC 1337 00:51:51,000 --> 00:51:52,000 ANYBODY AS TO WHETHER OR NOT 1338 00:51:52,000 --> 00:51:56,000 THIS THING IS CRIMINNOT. 1339 00:51:56,000 --> 00:51:58,000 WHY WOULD WE HE SITUATION IN 1340 00:51:58,000 --> 00:52:00,000 WHICH WE WOULD SAY THAT THE 1341 00:52:00,000 --> 00:52:01,000 PRESIDENT OU BE MAKING 1342 00:52:01,000 --> 00:52:04,000 OFFICIAL ACTS WITHOUT ANY 1343 00:52:04,000 --> 00:52:05,000 RESPONSIBILITY FOR FOLLOWING THE 1344 00:52:05,000 --> 00:52:09,000 LA >> I RESPECTFULLY DISAGREE WITH 1345 00:52:09,000 --> 00:52:12,000 THAT CHARACTERIZATION. 1346 00:52:12,000 --> 00:52:13,000 THE PRESIDENT IS ABSUTY 1347 00:52:13,000 --> 00:52:14,000 REQUIRED TO FOLLOW THE LAW IN 1348 00:52:14,000 --> 00:52:16,000 HIS FIAL ACTS BUT THE REME 1349 00:52:16,000 --> 00:52:21,000 FOR THAT -- COULD HE BE SUBJECT 1350 00:52:21,000 --> 00:52:23,000 FOR PERSONAL VULNEBITY AND 1351 00:52:23,000 --> 00:52:24,000 BEING SENT TO PRIS FOR A BAD 1352 00:52:24,000 --> 00:52:25,000 DECISION HE MADE IN OFFICE? 1353 00:52:25,000 --> 00:52:28,000 >> OTHEREOPLE WHO HAVE 1354 00:52:28,000 --> 00:52:29,000 CONSEQUENTIAL JOBS AND ARE 1355 00:52:29,000 --> 00:52:31,000 REQUIRED TO FOLLOW T LAW MAKE 1356 00:52:31,000 --> 00:52:32,000 THOSE DETERMINATIONS AGAINST THE 1357 00:52:32,000 --> 00:52:33,000 BACKDROP OF THAT SAME KIND OF 1358 00:52:33,000 --> 00:52:35,000 RISK. 1359 00:52:35,000 --> 00:52:37,000 WHAT IS IT ABO T PRESIDENT? 1360 00:52:37,000 --> 00:52:40,000 I'VE HEARD YOU SAY IT'S BECAUSE 1361 00:52:40,000 --> 00:52:44,000 E ESIDENT HAS TO BE ABLE TO ACT BOLDLY ANDAK 1362 00:52:44,000 --> 00:52:49,000 CONSEQUENTIAL DECISIONS. 1363 00:52:52,000 --> 00:52:54,000 SURE, BUT THERE ARE LOTS OF 1364 00:52:54,000 --> 00:52:56,000 PEOPLE MAKE LIFE AND DEATH 1365 00:52:56,000 --> 00:52:57,000 DECISIONS BUT IF THEY DON'T, 1366 00:52:57,000 --> 00:52:58,000 THEY COULD BE SENT TO IS. 1367 00:52:58,000 --> 00:53:03,000 >> FROM FITZGERALD, THAT IS THE 1368 00:53:04,000 --> 00:53:05,000 INFERENCEASONING THIS COURT REJECTED. 1369 00:53:05,000 --> 00:53:08,000 >> FITERD WAS A CIVIL 1370 00:53:08,000 --> 00:53:10,000 SITUATION IN WCHHEREDENT 1371 00:53:10,000 --> 00:53:11,000 ACTUALLY WAS IN A DIFFERENT 1372 00:53:11,000 --> 00:53:13,000 POSITION THAN OTHER PEOPLE. 1373 00:53:13,000 --> 00:53:15,000 BECAUSE OF THE NATURE OF HIS 1374 00:53:15,000 --> 00:53:16,000 JOB, THE HIGH-PROFILE NATURE AND 1375 00:53:16,000 --> 00:53:18,000 THE FACT THAT HE TOUCHES SO MANY 1376 00:53:18,000 --> 00:53:21,000 WHEN YOU TALK ABOUT PRIVATE 1377 00:53:21,000 --> 00:53:23,000 CIVIL LIABILITY, ANYDYIM 1378 00:53:23,000 --> 00:53:24,000 STREET CAN S H AND WE CAN 1379 00:53:24,000 --> 00:53:28,000 SEE THAT THE PRESENT WAS SORT OF 1380 00:53:28,000 --> 00:53:29,000 DIFFERENT THAN THE ORDINARY 1381 00:53:29,000 --> 00:53:30,000 PERSON IF YOU SAY HE SHOULD BE 1382 00:53:30,000 --> 00:53:33,000 IMMUNE FROM CIL ABILITY. 1383 00:53:33,000 --> 00:53:35,000 WHEN WE ARE TALKING OF CRIMINAL 1384 00:53:35,000 --> 00:53:38,000 HOW THE PRESIDENT STANDS IN ANY 1385 00:53:38,000 --> 00:53:39,000 DIFFERENT POSITION WITH RESPECT 1386 00:53:39,000 --> 00:53:42,000 TO THE NEED TO FOLLOW THE LAW IN 1387 00:53:42,000 --> 00:53:44,000 DOING HIS JOB THAN ANYONE ELS 1388 00:53:44,000 --> 00:53:46,000 >> HE IS REQUIRED TO FOLLOWHE 1389 00:53:46,000 --> 00:53:50,000 LAW. >> BUT HE'S NOT IF THERE IS NO 1390 00:53:50,000 --> 00:53:51,000 THREAT OF CRIMINAL PROSECUTION. 1391 00:53:51,000 --> 00:53:52,000 WHAT PREVENTS THE PRESIDENT FROM 1392 00:53:52,000 --> 00:53:53,000 DOING WHATEVER HE WANTS? 1393 00:53:53,000 --> 00:53:56,000 >> ALL THE STRUCTURAL CHECKS 1394 00:53:56,000 --> 00:54:01,000 IDENFI IN FITZGERALD. 1395 00:54:06,000 --> 00:54:11,000 WHO >> I'M NOT SURE THAT'S MUCH 1396 00:54:11,000 --> 00:54:13,000 OF A BACKSTOP. 1397 00:54:13,000 --> 00:54:15,000 I GUESS WHAT I'M MORE W 1398 00:54:15,000 --> 00:54:17,000 ABOUT IS YOU SEEM TO WORRY -- BE 1399 00:54:17,000 --> 00:54:18,000 WORRIEDBOUT THE PRESIDENT 1400 00:54:18,000 --> 00:54:19,000 BEING CHILL. 1401 00:54:19,000 --> 00:54:21,000 I THINK WE WOULDAVE A 1402 00:54:21,000 --> 00:54:26,000 SIGNIFICANT OPPOSITE PROBLEM WITH THE PRESIDENT WASN'T -- THE 1403 00:54:28,000 --> 00:54:29,000 MOST POWERFUL PERSON IN THE 1404 00:54:29,000 --> 00:54:30,000 WORLD WITH T GREATEST AMOUNT 1405 00:54:30,000 --> 00:54:34,000 OF AUTHORITY IF HE COULD GO INTO 1406 00:54:34,000 --> 00:54:37,000 KNOWING TT ERE WOULD BE NO POTENTIAL PENAL F 1407 00:54:37,000 --> 00:54:40,000 COMMITTING CRIMES, I'M TRYING TO 1408 00:54:40,000 --> 00:54:42,000 RSTAND WHAT THE DISINCENTIVE 1409 00:54:42,000 --> 00:54:46,000 IS FROM TURNING THE OVAL OFFICE 1410 00:54:46,000 --> 00:54:48,000 INTO THE SEAT OF CRIMINA 1411 00:54:48,000 --> 00:54:49,000 ACTIVITY IN THIS COUNTRY. 1412 00:54:49,000 --> 00:54:52,000 >> I DON'T KNOW IF THERE IS ANY 1413 00:54:52,000 --> 00:54:55,000 ALLEGATION OF THIS CASE. 1414 00:54:55,000 --> 00:54:58,000 BENJAMIN FRANKLIN SAID 'VE USE 1415 00:54:58,000 --> 00:54:59,000 THE PROSECUTIOABT CHIEF 1416 00:54:59,000 --> 00:55:01,000 EXUTIVE THAT EVERYONE CRIED 1417 00:55:01,000 --> 00:55:02,000 OUT ON AND GEORGE WASHINGTON 1418 00:55:02,000 --> 00:55:04,000 SAID WE ARE WORRIED ABOUT 1419 00:55:04,000 --> 00:55:09,000 FACTUAFE. >> LET ME PUT THIS WORRY ON THE 1420 00:55:09,000 --> 00:55:10,000 TABLE -- AT THE POTENTIAL FOR 1421 00:55:10,000 --> 00:55:12,000 CRIMINAL LIABILITY IS TAKEN OFF 1422 00:55:12,000 --> 00:55:15,000 THE TABLE, WOULDN'T THERE BE A SIGNIFICANT RISK THAT FUR 1423 00:55:15,000 --> 00:55:16,000 PRESIDENTS WOULD BE EMBOLDENE 1424 00:55:16,000 --> 00:55:20,000 TO COMMIT CRIMESIT ABANDON 1425 00:55:20,000 --> 00:55:22,000 WHILE THEYN OFFICE? 1426 00:55:22,000 --> 00:55:23,000 RIT NOW, THE FACT THAT WE ARE 1427 00:55:23,000 --> 00:55:27,000 HAVING THIS DEBATE BECAUSE 1428 00:55:27,000 --> 00:55:29,000 PRESIDENTS MIGHT BE PROSECUTED, 1429 00:55:29,000 --> 00:55:31,000 PRESIDENTS FROM THE BEGINNING OF 1430 00:55:31,000 --> 00:55:32,000 TIME OF UNDERSTOOD THAT'S A 1431 00:55:32,000 --> 00:55:33,000 POSSIBILIT 1432 00:55:33,000 --> 00:55:35,000 THAT MIGHT BE WHAT HAS KEPT THIS 1433 00:55:35,000 --> 00:55:36,000 OFFICE FROM TUININTO THE 1434 00:55:36,000 --> 00:55:39,000 KIND OF CRIME CTEI'M 1435 00:55:39,000 --> 00:55:44,000 ENVISIONING. ONCE WE SAY NO CRIMINAL 1436 00:55:44,000 --> 00:55:46,000 LIABILITY, MR. PRESIDENT. N DO WHATEVER YOU WANT. 1437 00:55:46,000 --> 00:55:47,000 I'M WORRIED WE WOULD HAVE A 1438 00:55:47,000 --> 00:55:49,000 WORSE PROBLEM THAN THE PROBLEM 1439 00:55:49,000 --> 00:55:52,000 OF THE PRESENT FEELING 1440 00:55:52,000 --> 00:55:54,000 CONSTRAINETOOLLOW THE LAW WHILE HE'S IN OFFICE. 1441 00:55:54,000 --> 00:55:57,000 >> I RESPECTFULLY DISAGREE WITH 1442 00:55:57,000 --> 00:56:00,000 THAT. 1443 00:56:00,000 --> 00:56:01,000 THIS IS THE REGIME WE'VE 1444 00:56:01,000 --> 00:56:03,000 OPERATED ON UNDER 234 YEARS. 1445 00:56:03,000 --> 00:56:05,000 >> LET ME ASK YOU ANOTHER 1446 00:56:05,000 --> 00:56:09,000 ESTION. 1447 00:56:09,000 --> 00:56:10,000 LET ME ASK ABOUT THE CLEAR 1448 00:56:10,000 --> 00:56:12,000 STATEMENT LINE OF QUESTIONING. 1449 00:56:12,000 --> 00:56:14,000 I DIDN'T SEE YOU ARGUE THAT 1450 00:56:14,000 --> 00:56:15,000 LO 1451 00:56:15,000 --> 00:56:17,000 I UNDERSTAND YOU HAVE THAT IN 1452 00:56:17,000 --> 00:56:21,000 YO BRIEFS BUT DID YOU ARGUE 1453 00:56:21,000 --> 00:56:22,000 BEFORE THE D.C. CIRCUIT JUDGE 1454 00:56:22,000 --> 00:56:24,000 ABOUT A CLEAR STATEMENTIT 1455 00:56:24,000 --> 00:56:28,000 RESPECT TO STATUTES? >> YESINUR SEPARATELY FILED 1456 00:56:28,000 --> 00:56:30,000 MOTION. 1457 00:56:30,000 --> 00:56:34,000 >> THAT'S NOT THE QUESTION IN 1458 00:56:34,000 --> 00:56:37,000 THIS CASE. THE QUESTION IN THIS CASE COMES 1459 00:56:37,000 --> 00:56:40,000 OUT YR MOTION FOR IMMUNITY. 1460 00:56:40,000 --> 00:56:42,000 TO BRING IN AN ARGUMENT THAT YOU 1461 00:56:42,000 --> 00:56:43,000 DIDN'T RAISE BELOW, IT SEEMS YOU 1462 00:56:43,000 --> 00:56:46,000 FORFEIT. 1463 00:56:46,000 --> 00:56:47,000 >> I BELIEVE IT'S FAIRLY 1464 00:56:47,000 --> 00:56:48,000 CLED WITHIN THE QUESTION 1465 00:56:48,000 --> 00:56:49,000 PRESENTED. >> WHY? 1466 00:56:49,000 --> 00:56:51,000 >> THE COURT EXPANDED THE 1467 00:56:51,000 --> 00:56:56,000 QUESTION. >> BUT NOT A DIFFERENT STATUTORY 1468 00:56:56,000 --> 00:57:00,000 COMPLICATION OR DETERMATN? 1469 00:57:00,000 --> 00:57:02,000 THAT GOES TO CONSTITUTIONAL 1470 00:57:02,000 --> 00:57:03,000 AVOIDANCE, STATUTORY 1471 00:57:03,000 --> 00:57:04,000 INTERPRETATION IN U.S. FOR 1472 00:57:04,000 --> 00:57:05,000 IMMUNITY WHICH IS A DIERT THING. 1473 00:57:05,000 --> 00:57:08,000 >> I THINK IT'S RY CLOSE 1474 00:57:08,000 --> 00:57:10,000 LOGICALLY. 1475 00:57:10,000 --> 00:57:12,000 TO WHAT EXTENT DOES IT EXIST IN 1476 00:57:12,000 --> 00:57:14,000 THE ARGUMENT IS IMMUNITY EXISTS 1477 00:57:14,000 --> 00:57:15,000 TO THE EXTENT THAT IT GRAZES A 1478 00:57:15,000 --> 00:57:17,000 GREAT -- IT RAISES A GREAT 1479 00:57:17,000 --> 00:57:22,000 >> THAT'S TAY CIRCULAR.. 1480 00:57:22,000 --> 00:57:23,000 YOU USED TT ARGUMENT TO AVOID 1481 00:57:23,000 --> 00:57:26,000 CONSTITUTIUESTIONS. 1482 00:57:26,000 --> 00:57:27,000 YOU ARE ASKING US A 1483 00:57:27,000 --> 00:57:28,000 CONSTITUTIONAL QUESTION HERE SO 1484 00:57:28,000 --> 00:57:29,000 IT DOESN'T EVENAK SENSE TO 1485 00:57:29,000 --> 00:57:32,000 TALK AUTLEAR STATEMENTS AND 1486 00:57:32,000 --> 00:57:33,000 OVERRULE RULE THE WAVECO UP 1487 00:57:33,000 --> 00:57:35,000 IN THE CONTEXT OF AN IMMUNITY 1488 00:57:35,000 --> 00:57:36,000 QUESTION. 1489 00:57:36,000 --> 00:57:40,000 LET ME ASK YOU THIS -- 1490 00:57:40,000 --> 00:57:45,000 ONE MORTION -- 1491 00:57:46,000 --> 00:57:51,000 WHAT IS THE ARGUMENT WITHHE 1492 00:57:51,000 --> 00:57:52,000 PRESIDENT OF UNITED STATES WHO 1493 00:57:52,000 --> 00:57:54,000 YOU SAY IS BOUND BY LAW IS NOT 1494 00:57:54,000 --> 00:57:55,000 UNNOTICED THAT HE HAS TO DO HIS 1495 00:57:55,000 --> 00:57:58,000 JOCOISTENT WITH THE LAW? 1496 00:57:58,000 --> 00:58:00,000 TO THE EXTENT THE CLEAR 1497 00:58:00,000 --> 00:58:01,000 STATEMENT RULE COMES IN, IT'S 1498 00:58:01,000 --> 00:58:02,000 ABOUT THE PERSON NOT BEING ON 1499 00:58:02,000 --> 00:58:03,000 NOTICE 1500 00:58:03,000 --> 00:58:05,000 I DON'T UNDERSTAND WHY CONGRESS 1501 00:58:05,000 --> 00:58:06,000 IN EVERYRINAL STATUTE WOULD 1502 00:58:06,000 --> 00:58:09,000 HAVE TO S AND THE PRESIDENT IS 1503 00:58:09,000 --> 00:58:10,000 CLUDED. 1504 00:58:10,000 --> 00:58:12,000 THOUGHT THAT WAS THE 1505 00:58:12,000 --> 00:58:13,000 BAGROUND UNDERSTANDING THAT 1506 00:58:13,000 --> 00:58:16,000 THEY ARE ENACTING A GENERALLY 1507 00:58:16,000 --> 00:58:17,000 APPLICABLE CRIMINAL STANDARD 1508 00:58:17,000 --> 00:58:18,000 WHICH APPLIES TO THE PRESIDENT 1509 00:58:18,000 --> 00:58:19,000 LIKE EVERYONE ELSE. 1510 00:58:19,000 --> 00:58:21,000 WHAT IS THE CLEASTEMENT THAT 1511 00:58:21,000 --> 00:58:22,000 WOULD BE MADE IN THIS CONTEXT? 1512 00:58:22,000 --> 00:58:25,000 >> UNDER FRANKLIN, CONGRESS HAS 1513 00:58:25,000 --> 00:58:27,000 TO SPEAK CAR BEFORE IT 1514 00:58:27,000 --> 00:58:28,000 INTERFERES WITH THE PRESIDENT'S 1515 00:58:28,000 --> 00:58:29,000 WERS. 1516 00:58:29,000 --> 00:58:30,000 WE HE AN INDICTMENT HERE THAT 1517 00:58:30,000 --> 00:58:33,000 SEEKS TO CRIMINALIZE OBJECTIVE 1518 00:58:33,000 --> 00:58:35,000 CONTEXT THAT FALLS WITHIN THE 1519 00:58:35,000 --> 00:58:36,000 HEARTLAND OF CORE EXECUTIVE AUTHORITY. 1520 00:58:36,000 --> 00:58:37,000 >> THANK YOU. 1521 00:58:37,000 --> 00:58:39,000 >> THANK YOU, COUNSEL. 1522 00:58:39,000 --> 00:58:44,000 >> MR. DREEBEN? MAID PLEA THE 1523 00:58:46,000 --> 00:58:49,000 COURT, THIS COURT HAS NEVER 1524 00:58:49,000 --> 00:58:51,000 REGNED ABSOLUTE CRIMINAL 1525 00:58:51,000 --> 00:58:52,000 IMNITY FOR ANY PUBLIC 1526 00:58:52,000 --> 00:58:55,000 OFFICIAL. 1527 00:58:55,000 --> 00:58:57,000 PETITIONER CLAIMS THAT A FORMER 1528 00:58:57,000 --> 00:58:59,000 PRESIDENT HAS PROMINENT CRIMINAL 1529 00:58:59,000 --> 00:59:01,000 IMMUNITY FOR ITS OFFICIAL ACT 1530 00:59:01,000 --> 00:59:03,000 UNLESS HE WAS FIRST IMPEACH 1531 00:59:03,000 --> 00:59:05,000 AND CONVICTED. 1532 00:59:05,000 --> 00:59:07,000 HIS NOVEL THEORY WOULD IMMUNIZE 1533 00:59:07,000 --> 00:59:08,000 FOER PRESIDENT'S FOR CRIMINAL 1534 00:59:08,000 --> 00:59:11,000 LIAB FOR BRIBERY, TREASON, 1535 00:59:11,000 --> 00:59:16,000 SEDITION, MURDER 1536 00:59:24,000 --> 00:59:26,000 SUCH PRESIDENTIAL IMMUNITY HAS 1537 00:59:26,000 --> 00:59:27,000 NO FOUNDATION IN THE 1538 00:59:27,000 --> 00:59:29,000 CONSTITUTIONAL CONSTRUCTION. 1539 00:59:29,000 --> 00:59:31,000 THE FRKNEW ALL TOO WELL 1540 00:59:31,000 --> 00:59:34,000 THE DANGS A KG WHO COULD 1541 00:59:34,000 --> 00:59:35,000 DO NO WRONG. 1542 00:59:35,000 --> 00:59:40,000 THEY DEVISED AYSTEM. 1543 00:59:42,000 --> 00:59:43,000 HERE THE EXECUTIVERAH IS 1544 00:59:43,000 --> 00:59:45,000 ENFORCING CONGRESSIONAL STATUTES 1545 00:59:45,000 --> 00:59:48,000 AND SEEKING ACCOUNTABITFOR 1546 00:59:48,000 --> 00:59:51,000 PETITIONERS' ALLEGED MISUSE OF 1547 00:59:51,000 --> 00:59:52,000 OFFICIAL POWER TO SUBVERT 1548 00:59:52,000 --> 00:59:53,000 DEMOAC 1549 00:59:53,000 --> 00:59:54,000 THAT IS A COMPELLING PUBLIC 1550 00:59:54,000 --> 00:59:57,000 INTEREST. 1551 00:59:57,000 --> 00:59:59,000 IN RESPONSE, PETITIONER RAISES 1552 00:59:59,000 --> 01:00:04,000 CONCERNS ABOENTIAL ABUSES. 1553 01:00:06,000 --> 01:00:07,000 ESTABLHELEGAL SAFEGUARDS PROVIDE LAYERS OF PROTECTIONS 1554 01:00:07,000 --> 01:00:09,000 WITH THELE THREE CRTS 1555 01:00:09,000 --> 01:00:12,000 PROVIDING THE ULTIMATE CHECK. 1556 01:00:12,000 --> 01:00:13,000 THE EXISTING SYSTEM IS A 1557 01:00:13,000 --> 01:00:15,000 REFULLY BALANCED FRAMEWORK. 1558 01:00:15,000 --> 01:00:18,000 IT PROTECTS THE PRESIDENT, BUT 1559 01:00:18,000 --> 01:00:20,000 NOT AT THE HIGH CONSTITUTIONAL 1560 01:00:20,000 --> 01:00:21,000 COST OF BLANKET CRIMINAL 1561 01:00:21,000 --> 01:00:23,000 IMMUNITY. 1562 01:00:23,000 --> 01:00:24,000 THAT HAS BEEN THE UNDERSTANDG 1563 01:00:24,000 --> 01:00:26,000 OF EVERY PSIDENT FROM THE 1564 01:00:26,000 --> 01:00:28,000 FRAMING THROUGH WATERGATE AND UP 1565 01:00:28,000 --> 01:00:30,000 TO TODAY. 1566 01:00:30,000 --> 01:00:31,000 THIS COURT SHOULD PRESERVE IT. 1567 01:00:31,000 --> 01:00:34,000 I WELCOME THE COURT'S ONS. 1568 01:00:34,000 --> 01:00:39,000 >> DOES THE PRESIDENT HAVE 1569 01:00:40,000 --> 01:00:43,000 IMMUNITY OR ARE YOU SAYING THAT 1570 01:00:43,000 --> 01:00:45,000 THERE IS NO PRESIDENTIAL 1571 01:00:45,000 --> 01:00:46,000 MUNITY EVEN FOR OFFICIAL ACT 1572 01:00:46,000 --> 01:00:50,000 >> YES, JUSTICE THOMAS, BUT IT 1573 01:00:50,000 --> 01:00:52,000 IS IMPORTANT TO PUIN 1574 01:00:52,000 --> 01:00:53,000 PERSPECTIVE THE POSITION THAT WE 1575 01:00:53,000 --> 01:00:57,000 ARE OFFERI COURT TODAY. 1576 01:00:57,000 --> 01:01:00,000 THE PRE AS THE HEAD OF THE 1577 01:01:00,000 --> 01:01:04,000 ARCLTO BNC CAN ASSERT AS 1578 01:01:04,000 --> 01:01:05,000 APPLIED ARTICLE TWO OBJECTIONS 1579 01:01:05,000 --> 01:01:08,000 TO CRIMINAL LAWS THAT INTERFERE 1580 01:01:08,000 --> 01:01:09,000 WITH AN EXCLUSE WER 1581 01:01:09,000 --> 01:01:11,000 POSSESSED BY THE PRESIDENT OR 1582 01:01:11,000 --> 01:01:14,000 THAT PREVENT THE PRESIDE FM 1583 01:01:14,000 --> 01:01:15,000 ACCOMPLISHING H CSTITUTIONAL 1584 01:01:15,000 --> 01:01:18,000 HE ASSIGNED FUNCTIONS. 1585 01:01:18,000 --> 01:01:19,000 AT IS THE CONSTITUTIONAL 1586 01:01:19,000 --> 01:01:21,000 DOCTRINE THAT CURRENTLY GOVERNS 1587 01:01:21,000 --> 01:01:23,000 THE SEPARATION OF POWERS. 1588 01:01:23,000 --> 01:01:26,000 WHAT PETITIONER IS ASKING FOR IS 1589 01:01:26,000 --> 01:01:28,000 A BROAD, BLANKET IMMUNITY THAT 1590 01:01:28,000 --> 01:01:29,000 WOULD PROTECT THE PRESIDENT, A 1591 01:01:29,000 --> 01:01:32,000 FORMER PRESI FROM ANY 1592 01:01:32,000 --> 01:01:35,000 CRIMINAL EOSE ABSENT 1593 01:01:35,000 --> 01:01:37,000 IMPEACHMENT AND CONVICTION, 1594 01:01:37,000 --> 01:01:38,000 WHICH HAS NEVER HAPPENED IN OUR 1595 01:01:38,000 --> 01:01:40,000 HISTORY, AND WE SUBMIT THAT IS 1596 01:01:40,000 --> 01:01:42,000 NOT NECESSARY IN ORDER TOE 1597 01:01:42,000 --> 01:01:44,000 THAT THE PRESIDENT CAN PERFORM 1598 01:01:44,000 --> 01:01:47,000 ALL OF THE IMPORTANT TASKS THAT 1599 01:01:47,000 --> 01:01:49,000 THE CONSTITUTION REPOSES IN HIM. 1600 01:01:49,000 --> 01:01:54,000 >> IN NOSOISTANT PAST, 1601 01:01:54,000 --> 01:01:59,000 CERTAIN PRESIDENTS HAVE ENGAGED 1602 01:01:59,000 --> 01:02:04,000 VARIOUS ACTIVITIE, 1603 01:02:05,000 --> 01:02:07,000 OPERATIONS, LIKE OPERATION 1604 01:02:07,000 --> 01:02:11,000 NGSE WHEN I WAS A TEENAGER, 1605 01:02:11,000 --> 01:02:12,000 AND YET THERE WERE NO PROSECUTIONS. 1606 01:02:12,000 --> 01:02:15,000 WHY? 1607 01:02:15,000 --> 01:02:19,000 IF WHAT YOU ARE SAYING IS RIGHT, 1608 01:02:19,000 --> 01:02:21,000 IF IT SEEMS THAT THAT WOULD HAVE BEEN RIGHT FOR CRIMINA 1609 01:02:21,000 --> 01:02:26,000 PROSECUTION. 1610 01:02:26,000 --> 01:02:28,000 >> JUSTICE THOMAS, I THINK THIS IS A CENTRAL QUE 1611 01:02:28,000 --> 01:02:29,000 THE REASON WHY THERE HAVE NOT 1612 01:02:29,000 --> 01:02:33,000 BEEN PRIOR CRIMINAL PROSECUTIONS 1613 01:02:33,000 --> 01:02:35,000 ISHAT THERE WERE NOT CRIMES. 1614 01:02:35,000 --> 01:02:37,000 I WANT TO EXPLAIN WHY THERE ARE 1615 01:02:37,000 --> 01:02:39,000 LAYERS OF SAFEGUARDS THAT ASSURE 1616 01:02:39,000 --> 01:02:41,000 THAT FORMER PRESIDTSO NOT 1617 01:02:41,000 --> 01:02:43,000 HAVE TO LIGHTLY ASSUME CRIMINA 1618 01:02:43,000 --> 01:02:44,000 LIABILITY FOR ANY OF THEIR 1619 01:02:44,000 --> 01:02:46,000 OFFICIAL ACTS. 1620 01:02:46,000 --> 01:02:49,000 ATHE OUTSET, THERE IS A 1621 01:02:49,000 --> 01:02:50,000 STATUTORY CONSTRUCTIONRINCIPLE 1622 01:02:50,000 --> 01:02:52,000 THAT IS APPLICABLE HERE. 1623 01:02:52,000 --> 01:02:55,000 IT ARISES WHEN THERE IS A 1624 01:02:55,000 --> 01:02:58,000 SERIOUS CONSTITUTIONAL QUESTION 1625 01:02:58,000 --> 01:03:01,000 ABOUT APPLYING A CRIMINAL ATE TO THE PREDE'S ACT. 1626 01:03:01,000 --> 01:03:02,000 IT IS NOT AND I'M SURE WE WILL 1627 01:03:02,000 --> 01:03:05,000 DISCUSS TS THAT NO STATUTE CAN 1628 01:03:05,000 --> 01:03:06,000 APPLY TO THE PRESIDENT IN HIS 1629 01:03:06,000 --> 01:03:09,000 OFFICIAL CAPACITY ABSENT A 1630 01:03:09,000 --> 01:03:10,000 DESIGNATION OF THE PRESIDENT IN 1631 01:03:10,000 --> 01:03:12,000 IT. BUT THERE IS A PRINCIPLE THAT IF 1632 01:03:12,000 --> 01:03:13,000 THERE IS A SERIOUS 1633 01:03:13,000 --> 01:03:15,000 CONSTITUTIONAL QUESTION, COURTS 1634 01:03:15,000 --> 01:03:17,000 WILL STRIVE TO CONSTRUE THE 1635 01:03:17,000 --> 01:03:20,000 THE PRESIDENT.DOES NOT APPLY TO 1636 01:03:20,000 --> 01:03:23,000 IN ADDITION TOT, THE 1637 01:03:23,000 --> 01:03:24,000 PRESIDENT I THINK HAS BEEN 1638 01:03:24,000 --> 01:03:26,000 NTIONED EARLIER HAS ACCESS TO 1639 01:03:26,000 --> 01:03:28,000 ADVICE FROM THE ATTORNEY GENERAL 1640 01:03:28,000 --> 01:03:30,000 AND IT WOULD BE A DUE PROCESS 1641 01:03:30,000 --> 01:03:33,000 PROBLEM TO PROSECU A PRESINT 1642 01:03:33,000 --> 01:03:34,000 TO RECEIVES ADVICE FROM THE 1643 01:03:34,000 --> 01:03:35,000 ATTORNEY GENERAL THAT HIS 1644 01:03:35,000 --> 01:03:38,000 ACTIONS WERE LAWFUL ABSENT THE 1645 01:03:38,000 --> 01:03:42,000 KIND OF CLUSION OR CONSPIRACY 1646 01:03:42,000 --> 01:03:43,000 THAT IS SELF REPRESENTED A 1647 01:03:43,000 --> 01:03:45,000 CRIMINAL VIOLATION, WHICH I 1648 01:03:45,000 --> 01:03:46,000 DON'T REALLY SEE AS BEING A 1649 01:03:46,000 --> 01:03:47,000 REALISTIC OPTION. 1650 01:03:47,000 --> 01:03:49,000 AND IF I COULD SAY ONE MORE 1651 01:03:49,000 --> 01:03:51,000 THING BECAUSE YOU RAISED THE 1652 01:03:51,000 --> 01:03:53,000 QUESTION ABOUT POTTI 1653 01:03:53,000 --> 01:03:55,000 OVERSEAS TAKING OF LIFE AND THE 1654 01:03:55,000 --> 01:03:57,000 OFFICE OF LEGAL COUNSEL HAS 1655 01:03:57,000 --> 01:04:00,000 DRSED THIS QUITE SPECIFICALLY. 1656 01:04:00,000 --> 01:04:02,000 THERE IS A BACKGROD INCIPLE OF CRIMINAL LAW CALLED THE 1657 01:04:02,000 --> 01:04:05,000 PUBLIC AUTHORITY EXCEPTION T 1658 01:04:05,000 --> 01:04:07,000 LIABILITY AND IT IS READ INTO 1659 01:04:07,000 --> 01:04:09,000 FEDERAL L UNLESS CONGRESS 1660 01:04:09,000 --> 01:04:12,000 TAKES SPECIFIC ACTION TO OUSTED, 1661 01:04:12,000 --> 01:04:14,000 WHICH IT NEVER HAS DONES R 1662 01:04:14,000 --> 01:04:17,000 AS I AM AWARE, AND IN A CA IN 1663 01:04:17,000 --> 01:04:19,000 WHICH THE PRESIDENT SOUG 1664 01:04:19,000 --> 01:04:21,000 ENGAGEN OVERSEAS ACTIVITY THAT 1665 01:04:21,000 --> 01:04:22,000 WOD RESULT IN THE TAKING OF 1666 01:04:22,000 --> 01:04:25,000 FE IT DID NOT SAY THE FEDERAL 1667 01:04:25,000 --> 01:04:26,000 MURDER STATUTE DOESN'T 1668 01:04:26,000 --> 01:04:30,000 THAT WOULD BE THE CRUX OF MY 1669 01:04:30,000 --> 01:04:34,000 FRIEND'S ARGUMENT. 1670 01:04:34,000 --> 01:04:36,000 INSTEAD, OLC WENT THROUGH AN TEIVE ANALYSIS ON WHYHE 1671 01:04:36,000 --> 01:04:39,000 PUBLIC AUTHORITY DEFENSEOULD 1672 01:04:39,000 --> 01:04:40,000 PREVENTED FROM BEING CONSIDERED 1673 01:04:40,000 --> 01:04:42,000 A VIOLATION OF LAW TO GO AFTER A 1674 01:04:42,000 --> 01:04:44,000 TERRORIST FOR EXAMPLE. 1675 01:04:44,000 --> 01:04:48,000 >> THE COURT OF APPEALS BELOW IN 1676 01:04:48,000 --> 01:04:50,000 THE DECISION WREVIING 1677 01:04:50,000 --> 01:04:53,000 SAID "A FORMER PRESIDENT CAN BE 1678 01:04:53,000 --> 01:04:56,000 PROSECUTED FOR HIS OFFICIAL ACTS 1679 01:04:56,000 --> 01:04:57,000 BECAUSE THE FACT OF THE 1680 01:04:57,000 --> 01:04:58,000 PRECUTION MEANS THAT THE 1681 01:04:58,000 --> 01:05:00,000 FORMER PRESIDENT HAS ALLEGEDLY 1682 01:05:00,000 --> 01:05:03,000 ACTED IN DEFIANCE OF THE LAWS." 1683 01:05:03,000 --> 01:05:04,000 DO YOU AGREE WAT STATEMENT? 1684 01:05:04,000 --> 01:05:06,000 >> I THI ISOUNDS TALL 1685 01:05:06,000 --> 01:05:11,000 LOGICALLY TRUE, B IANT TO 1686 01:05:11,000 --> 01:05:13,000 UNDERSCORE THAT THE OBLIGATION 1687 01:05:13,000 --> 01:05:14,000 OF ARESIDENT IS TO TAKE CARE 1688 01:05:14,000 --> 01:05:15,000 THAT THE LAWS ARE FAITHFUL 1689 01:05:15,000 --> 01:05:17,000 EXECUTED. 1690 01:05:17,000 --> 01:05:21,000 >> I THINK IT SOUNDS TA 1691 01:05:21,000 --> 01:05:26,000 ILLOGICALLY TRUE WELL. 1692 01:05:26,000 --> 01:05:29,000 AS I READ IT, IT SAYS SIMPLY A 1693 01:05:29,000 --> 01:05:31,000 FORMER PRESIDENT CAN BE 1694 01:05:31,000 --> 01:05:32,000 PROSECUTED BECAUSE HE IS BEING PROSECUT. 1695 01:05:32,000 --> 01:05:36,000 >> I WOULD NOT SUGGEST THAT THAT 1696 01:05:36,000 --> 01:05:39,000 IS EITHER E OPER APPROACH IN THIS CASE WERE CERTAINLY NOT THE 1697 01:05:39,000 --> 01:05:41,000 GORNNT'S APPROACH. 1698 01:05:41,000 --> 01:05:44,000 AROSECUTION DOES OF COURSE 1699 01:05:44,000 --> 01:05:47,000 INVOKE FEDERAL CRIMINAL LAW. 1700 01:05:47,000 --> 01:05:49,000 THE ALLEGATIONS HAVE TO BE 1701 01:05:49,000 --> 01:05:51,000 PRESENTED TO A GRAND JURY. 1702 01:05:51,000 --> 01:05:55,000 >> SHORTLY AFTER THAT STATEMENT 1703 01:05:55,000 --> 01:05:57,000 IN THE COU, THAT IS WHAT THEY 1704 01:05:57,000 --> 01:06:00,000 SAID, BUT THERE IS NO REASON TO 1705 01:06:00,000 --> 01:06:01,000 WORRY BECAUSE THE PROSECUTOR 1706 01:06:01,000 --> 01:06:03,000 WILL ACT IN GOOD FAITH AND THERE 1707 01:06:03,000 --> 01:06:05,000 IS NO REASON TO WORRY BECAUSE 1708 01:06:05,000 --> 01:06:06,000 THE GRAND JURY WILL HAVE 1709 01:06:06,000 --> 01:06:08,000 RETURNED THE INDICEN 1710 01:06:08,000 --> 01:06:09,000 YOU KNOW HOW EASY IT IS IN MANY 1711 01:06:09,000 --> 01:06:10,000 CASES FOR A PROSECUTOR TO GET A 1712 01:06:10,000 --> 01:06:13,000 GRAND JURY TO BRING IN 1713 01:06:13,000 --> 01:06:14,000 INDICTMENT AND RELIANCE ON THE 1714 01:06:14,000 --> 01:06:17,000 GOOD FAITH OF THE PROSECUTOR MAY 1715 01:06:17,000 --> 01:06:21,000 NOT BE ENOUGH IN SOME CASES. 1716 01:06:21,000 --> 01:06:25,000 'M NOT SUGGESTING HERE. 1717 01:06:25,000 --> 01:06:27,000 IF THOSE ARE THENL 1718 01:06:27,000 --> 01:06:29,000 PROTECTIONS AND IT IS 1719 01:06:29,000 --> 01:06:32,000 TOPOLOGICAL AND THAT ISO 1720 01:06:32,000 --> 01:06:33,000 LONGER YOUR POSITION, YOU ARE 1721 01:06:33,000 --> 01:06:36,000 T FENDING THAT PITION, WHY 1722 01:06:36,000 --> 01:06:38,000 SHOULDN'T SEND IT BACK TO THE 1723 01:06:38,000 --> 01:06:41,000 COURT OF APPEALS OR ISSUE AN 1724 01:06:41,000 --> 01:06:45,000 OPINION MAKING CLEAR THAT THAT IS THE LAW? 1725 01:06:45,000 --> 01:06:48,000 >> I AM DEFENDING E URT OF APPEALS JUDGMENT AND I DO THINK 1726 01:06:48,000 --> 01:06:50,000 THERE ARE LAYERED SAFEGUARDS THE 1727 01:06:50,000 --> 01:06:52,000 COURT CAN TAK ACCOUNT THAT 1728 01:06:52,000 --> 01:06:56,000 WILL AMELIORATE CONCERNS ABOUT 1729 01:06:56,000 --> 01:06:57,000 UNDULY CHILLING PRESIDENTIAL 1730 01:06:57,000 --> 01:06:59,000 CONDUCT. TH CCERNS US. 1731 01:06:59,000 --> 01:07:00,000 WE ARE NOT ENDORSING A REGIME 1732 01:07:00,000 --> 01:07:01,000 ATE THINK WOULD EXPOSE 1733 01:07:01,000 --> 01:07:03,000 FORMER PRESIDENTSO CRIMINAL 1734 01:07:03,000 --> 01:07:06,000 PROSECUTIONS IN BAD FAITH, FOR 1735 01:07:06,000 --> 01:07:07,000 POLITICAL ANIMUS, WITHOUT 1736 01:07:07,000 --> 01:07:10,000 ADEQUATE EVIDENCE. 1737 01:07:10,000 --> 01:07:11,000 A POLITICALLY DRENROSECUTION 1738 01:07:11,000 --> 01:07:15,000 WOULD VIOLATE THE CONSTITUTION 1739 01:07:15,000 --> 01:07:16,000 UNDERWEIGHT VERSUS UNITED STATES. 1740 01:07:16,000 --> 01:07:17,000 IT IS T METHING WITHIN THE 1741 01:07:17,000 --> 01:07:21,000 ARSENAL OF PROSECUTORS TO DO. 1742 01:07:21,000 --> 01:07:23,000 PROSECUTORS TAKE AN OH,HE 1743 01:07:23,000 --> 01:07:24,000 ATTORNEY GENERAL TAKES AN OATH. 1744 01:07:24,000 --> 01:07:28,000 I DON'T WANT TO OVERSTATE YOUR 1745 01:07:28,000 --> 01:07:29,000 HONOR'S CONCERN WITH POTENTIALLY 1746 01:07:29,000 --> 01:07:31,000 RELYING FULLY ON GOOD FAITH, BUT 1747 01:07:31,000 --> 01:07:33,000 THAT IS AN INGREDI 1748 01:07:33,000 --> 01:07:34,000 AND THENHE COURTS STAND READY 1749 01:07:34,000 --> 01:07:37,000 TO AATE MOTNS BASED ON 1750 01:07:37,000 --> 01:07:39,000 SELECTIVE PROSECUTION, POLITICAL 1751 01:07:39,000 --> 01:07:41,000 . 1752 01:07:41,000 --> 01:07:43,000 THIS COURT RELIED ON THOSE VERY 1753 01:07:43,000 --> 01:07:45,000 PROTECTIONS IN A CASE JUST TWO 1754 01:07:45,000 --> 01:07:46,000 YEARS AGO. 1755 01:07:46,000 --> 01:07:50,000 WHAT CONCERNS ME IS THCOT 1756 01:07:50,000 --> 01:07:53,000 OF APPEALS DID NOT GET INTO A 1757 01:07:53,000 --> 01:07:54,000 FOCUSED CONSIDERATION OF WHAT 1758 01:07:54,000 --> 01:07:56,000 ACTS WE ARE TALKINGBO OR 1759 01:07:56,000 --> 01:07:58,000 WHAT DOCUMENTS WE ARE TALKING 1760 01:07:58,000 --> 01:08:00,000 ABOUT BECAUSE OF ITS ADOPTION OF 1761 01:08:00,000 --> 01:08:01,000 WH Y TERMED AND I AGREED 1762 01:08:01,000 --> 01:08:02,000 RIGHT CORRECTLY IS A 1763 01:08:02,000 --> 01:08:05,000 TAOLICAL STATEMENT. 1764 01:08:05,000 --> 01:08:06,000 BECAUSE THE FACTOR PROSECUTION 1765 01:08:06,000 --> 01:08:08,000 WAS ENOUGH TO TAKE AWAY ANY 1766 01:08:08,000 --> 01:08:11,000 OFFICIAL IMMUNITY, THE FACTOR 1767 01:08:11,000 --> 01:08:13,000 PROSECUTION, THEY HAD NO NEED TO 1768 01:08:13,000 --> 01:08:15,000 LOOK AT WHAT COURTS NORMALLY 1769 01:08:15,000 --> 01:08:17,000 PRIVILEGE OR IMMUNITY QUESTION. 1770 01:08:17,000 --> 01:08:21,000 >> I THINK I WOULD TAKE ISSUE 1771 01:08:21,000 --> 01:08:22,000 MR. CHIEF JUSTICE WITH THE IDEA 1772 01:08:22,000 --> 01:08:24,000 OF TAKING AWAY IMMUNITY. 1773 01:08:24,000 --> 01:08:26,000 THERE IS NO IMMITTHAT IS IN 1774 01:08:26,000 --> 01:08:30,000 THE CONSTITUTION UNLESS THIS 1775 01:08:30,000 --> 01:08:31,000 COURT CREATES IT TODAY. 1776 01:08:31,000 --> 01:08:33,000 THERE IS NO TEXTUALUNITY. 1777 01:08:33,000 --> 01:08:34,000 WE DO NOT SUBMIT THAT IS THE END 1778 01:08:34,000 --> 01:08:39,000 THE UNITED STATES VERSUS NIXON 1779 01:08:39,000 --> 01:08:41,000 WAS NOT A TEXTUALLY BASED CASE 1780 01:08:41,000 --> 01:08:42,000 NEITHER WAS NIXON VERSUS 1781 01:08:42,000 --> 01:08:43,000 FITZGERALD. 1782 01:08:43,000 --> 01:08:44,000 WE ENDORSED BOTH OF THOSE 1783 01:08:44,000 --> 01:08:45,000 HOLDINGS. 1784 01:08:45,000 --> 01:08:49,000 WHATS PORTANT IS THAT N 1785 01:08:49,000 --> 01:08:50,000 PUBLIC OFFICIAL HAS HAD AB 1786 01:08:50,000 --> 01:08:52,000 CRIMINAL IMMUNITY THAT MY FRIEND 1787 01:08:52,000 --> 01:08:55,000 SPEAKS OF, EVEN WITH RESPECT TO 1788 01:08:55,000 --> 01:08:56,000 THE SPEECH OR DEBATE CLAUSE. 1789 01:08:56,000 --> 01:08:58,000 IT IS NARROW AND IS FOCUSED ON 1790 01:08:58,000 --> 01:09:01,000 LEGISLATIVE ACTS, IT IS NOT 1791 01:09:01,000 --> 01:09:04,000 FOCUSED ON EVERYTHING A CONGRESSMAN DOES, AND IT 1792 01:09:04,000 --> 01:09:05,000 RESPONDS TO A SPECIFIC 1793 01:09:05,000 --> 01:09:07,000 HISTORAL CIRCUMSTANCE THAT 1794 01:09:07,000 --> 01:09:09,000 INVOLVED THE TWO OTHER BRANCHES 1795 01:09:09,000 --> 01:09:11,000 POTENTLLHARASSING 1796 01:09:11,000 --> 01:09:12,000 GISLATORS AND PREVENTING THEM 1797 01:09:12,000 --> 01:09:14,000 FR DOING THEIR JOBS. 1798 01:09:14,000 --> 01:09:15,000 THAT IS WHY IT ENDED UP IN THE 1799 01:09:15,000 --> 01:09:16,000 CONSTITUTION. 1800 01:09:16,000 --> 01:09:19,000 NOTHING LIKE THAT ENDED UP IN 1801 01:09:19,000 --> 01:09:22,000 PRESIDENT ANTH IS BECAUSE 1802 01:09:22,000 --> 01:09:24,000 ONE OF THE CHICERNS OF THE 1803 01:09:24,000 --> 01:09:26,000 FRAMERWATHE RISK OF 1804 01:09:26,000 --> 01:09:28,000 PRESIDENTIAL MISCONDUCT. 1805 01:09:28,000 --> 01:09:30,000 THEY LABORED OVER THIS. 1806 01:09:30,000 --> 01:09:34,000 EY ADOPTED AN IMPEACHMENT 1807 01:09:34,000 --> 01:09:36,000 STRUCTURE THAT SEPARATED REMOVAL 1808 01:09:36,000 --> 01:09:37,000 FROM OFFICE AS A POLITICAL 1809 01:09:37,000 --> 01:09:39,000 REMEDY FROM CRIMINAL 1810 01:09:39,000 --> 01:09:40,000 PROSECUTION. 1811 01:09:40,000 --> 01:09:41,000 THIS DEPARTEFR THE BRITISH 1812 01:09:41,000 --> 01:09:44,000 MODEL. 1813 01:09:44,000 --> 01:09:46,000 THE BRITH DEL WAS YOU GET 1814 01:09:46,000 --> 01:09:47,000 IMPEACHED AND CRIMINALLY 1815 01:09:47,000 --> 01:09:50,000 PROSECUT A CONVICTED IN THE SAME PROCEEDING. 1816 01:09:50,000 --> 01:09:52,000 AMERS DID NOT WANT THAT. 1817 01:09:52,000 --> 01:09:54,000 THEY WANTED AOLITICAL REMEDY 1818 01:09:54,000 --> 01:09:56,000 IN CASE A PRESIDENT WAS ENGI IN CONDUCT THAT ENDANGERED THE 1819 01:09:56,000 --> 01:09:58,000 NATION. 1820 01:09:58,000 --> 01:10:00,000 HE COULD BE REMOVED. 1821 01:10:00,000 --> 01:10:01,000 HE CAN'T BE PROSECUTED AS A 1822 01:10:01,000 --> 01:10:03,000 SITTING PRESIDENT. 1823 01:10:03,000 --> 01:10:05,000 THAT HAS BEEN A LONG-STANDING 1824 01:10:05,000 --> 01:10:10,000 E DERTMENT POSITION. >> YOU DISPUTE PROPOSITIONS THAT 1825 01:10:10,000 --> 01:10:11,000 A FORMER PRESIDENT HAS SOME RM 1826 01:10:11,000 --> 01:10:13,000 OF IMMUNITY, BUT AS I UNDERSTAND 1827 01:10:13,000 --> 01:10:16,000 YOUR ARGUMENT, YOU DO RECOGNIZE 1828 01:10:16,000 --> 01:10:19,000 THAT A FORMER PRESIDENT HAS A 1829 01:10:19,000 --> 01:10:22,000 FORM OF SPECIAL PROTECTION, 1830 01:10:22,000 --> 01:10:25,000 NAMELY THAT STATESHAT ARE 1831 01:10:25,000 --> 01:10:26,000 ALKALINE -- PLABLE TO 1832 01:10:26,000 --> 01:10:28,000 EVERYBODY MUST BE INTERPRETED 1833 01:10:28,000 --> 01:10:30,000 DIFFERENTLY UNDER SOME 1834 01:10:30,000 --> 01:10:31,000 CIRCSTCES WHEN APPLIED TO A 1835 01:10:31,000 --> 01:10:32,000 FORMER PRESIDENT. 1836 01:10:32,000 --> 01:10:35,000 ISN'T THAT TRUE? >> IT IS TRUE BECAUSE OF THE 1837 01:10:35,000 --> 01:10:37,000 GENERAL PRINCIPLE THAT COURTS 1838 01:10:37,000 --> 01:10:41,000 CONSTRUE STATUTES TO AVOID 1839 01:10:41,000 --> 01:10:42,000 SERIOUS CONSTITUTIONAL QUESTIONS 1840 01:10:42,000 --> 01:10:44,000 AND THAT HAS BEEN THE LONG-STANDING PRACTICE OF THE 1841 01:10:44,000 --> 01:10:45,000 OFFICE OF LEL COUNSEL. 1842 01:10:45,000 --> 01:10:50,000 >> ALL RIG, THIS IS MORE THAN 1843 01:10:51,000 --> 01:10:55,000 JU A QUARREL ABOUTERMINOLOGY 1844 01:10:55,000 --> 01:10:59,000 . 1845 01:10:59,000 --> 01:11:00,000 WHETHER IT IS IMMUNITY OR 1846 01:11:00,000 --> 01:11:03,000 SPECIAL PROTECTION BECAE 1847 01:11:03,000 --> 01:11:06,000 INVOLVES THIS DIFFERENCE WHICH YO ARE WELL AWARE OF. 1848 01:11:06,000 --> 01:11:08,000 IF IT IS JUST A FORM OF SPECIAL 1849 01:11:08,000 --> 01:11:09,000 PRECON, IN OTHER WORDS 1850 01:11:09,000 --> 01:11:11,000 STUT WILL BE INTERPRETED 1851 01:11:11,000 --> 01:11:14,000 DIERENTLY, THEN THAT IS 1852 01:11:14,000 --> 01:11:15,000 SOMETHING THAT HAS TO BE 1853 01:11:15,000 --> 01:11:18,000 LITIGATED AT TRIAL. 1854 01:11:18,000 --> 01:11:19,000 THE FORMER PRESIDENT CAN MAKE A 1855 01:11:19,000 --> 01:11:24,000 MOTION TO DISMISS AND MAY CITE 1856 01:11:24,000 --> 01:11:25,000 OPINIONSNDHE DISTRICT COURT 1857 01:11:25,000 --> 01:11:27,000 SAY, THAT'S FINE, I'M NOT BOUND 1858 01:11:27,000 --> 01:11:29,000 BY OLC AND I INTERPRET IT 1859 01:11:29,000 --> 01:11:31,000 DIFFERENTLY,O LET'S GO TO 1860 01:11:31,000 --> 01:11:32,000 TRIAL. 1861 01:11:32,000 --> 01:11:36,000 AND THERE HAS TO BE A TRIAL AND 1862 01:11:36,000 --> 01:11:38,000 THAT MAY INVOLVE GREAT EXPENSE 1863 01:11:38,000 --> 01:11:40,000 AND IT MAY TAKE UP A LOT OF TIME 1864 01:11:40,000 --> 01:11:44,000 AND DURING THE TRIAL THE FORMER 1865 01:11:44,000 --> 01:11:45,000 PRIDT MAY BE UNABLE TO 1866 01:11:45,000 --> 01:11:50,000 GA IN OTHER ACTIVITIES. 1867 01:11:51,000 --> 01:11:53,000 THEN THE OUTCOME IS DEPENDENT ON 1868 01:11:53,000 --> 01:11:55,000 THE JURY, T ITRUCTIONS TO 1869 01:11:55,000 --> 01:11:59,000 THE JURY AND HOW THE JY 1870 01:11:59,000 --> 01:12:00,000 RETURNS A VERDICT. 1871 01:12:00,000 --> 01:12:02,000 SO THE PROTECTION IS GREATLY 1872 01:12:02,000 --> 01:12:06,000 DILUTED IF YOU -- IF IT TAKES 1873 01:12:06,000 --> 01:12:07,000 THE FORM THAT YOU HAVE PROPOSED. 1874 01:12:07,000 --> 01:12:08,000 WHY IS THAT BETTER? 1875 01:12:08,000 --> 01:12:11,000 >> IT IS BETTER BEUSIT IS 1876 01:12:11,000 --> 01:12:14,000 MORE BALANCED. 1877 01:12:14,000 --> 01:12:18,000 THE BLANT MUNITY THAT PETITIONER IS ARGUING FOR JT 1878 01:12:18,000 --> 01:12:22,000 MEANS THAT A CRIMINAL PRECUTION IS OFF THE TLE 1879 01:12:22,000 --> 01:12:24,000 UNLESS HE SAYS THAT IMPEACHMENT 1880 01:12:24,000 --> 01:12:25,000 AND CONVICTION HAVE OCCURRED. 1881 01:12:25,000 --> 01:12:28,000 THOSE ARE POLEMICAL -- POLITICAL 1882 01:12:28,000 --> 01:12:29,000 REMEDIES THAT ARE EXTREMELY 1883 01:12:29,000 --> 01:12:32,000 DIFFULTO ACHIEVE IN A CASE 1884 01:12:32,000 --> 01:12:33,000 WHERE MISCONDUCT OCCURS CLOSE TO 1885 01:12:33,000 --> 01:12:36,000 THE END OF A PRESIDENT'S TERM. 1886 01:12:36,000 --> 01:12:37,000 CORE IS UNLIKELY TO CRANK UP 1887 01:12:37,000 --> 01:12:39,000 THE MACHINERY TO DO IT. 1888 01:12:39,000 --> 01:12:40,000 THE IMPEACHMENT TRIAL HAS TO 1889 01:12:40,000 --> 01:12:43,000 OCCUR AFTER THE PRESIDENT HAS 1890 01:12:43,000 --> 01:12:45,000 LEFT OFFICE, THERE IS AN OPEN 1891 01:12:45,000 --> 01:12:46,000 QUESTION ABOUT WHETHER THAT N 1892 01:12:46,000 --> 01:12:48,000 HAPPEN AT ALL. >> YOU ARE ARGUING AGAINST THE 1893 01:12:48,000 --> 01:12:50,000 MOST FAR-REACHING ASPECTS O 1894 01:12:50,000 --> 01:12:51,000 ARGUMENT. 1895 01:12:51,000 --> 01:12:54,000 >> THAT IS CORRECT. 1896 01:12:54,000 --> 01:12:55,000 AND LET ME TURN THEN TO WHY -- 1897 01:12:55,000 --> 01:13:00,000 >> DO YOU AGREE THAT THERE ARE 1898 01:13:02,000 --> 01:13:03,000 SOME ASPECTS OF ARTICLE TWO 1899 01:13:03,000 --> 01:13:05,000 PRESIDENTIAL POWER THAT ARE 1900 01:13:05,000 --> 01:13:06,000 EXCLUSIVE AND THAT CONGRESS 1901 01:13:06,000 --> 01:13:08,000 CANNOT REGULATE AND THEREFORE 1902 01:13:08,000 --> 01:13:10,000 CAOT CRIMINALIZE? >> AOLELY. 1903 01:13:10,000 --> 01:13:14,000 >> FOR OTHER OFFICIALCT THE 1904 01:13:14,000 --> 01:13:15,000 PRESIDENT MAY KE THAT ARE NOT 1905 01:13:15,000 --> 01:13:18,000 WITHIN THAT EXCLUSIVE POWER, 1906 01:13:18,000 --> 01:13:19,000 ASSUME FOR THE SAKE OF ARGUMENT 1907 01:13:19,000 --> 01:13:21,000 THIS QUESTION THAT THERE IS NOT 1908 01:13:21,000 --> 01:13:23,000 BLANKE IMMUNITY R OSE 1909 01:13:23,000 --> 01:13:26,000 OFFICIAL ACTS, BUT TT 1910 01:13:26,000 --> 01:13:28,000 PRESERVE THE SEPARATION OF 1911 01:13:28,000 --> 01:13:30,000 POWERS, TO PROVIDE FAIR NOTICE 1912 01:13:30,000 --> 01:13:31,000 TO MAKE SURE CONGRESS HAS 1913 01:13:31,000 --> 01:13:34,000 THOUGHT ABOUT THIS THAT CONGRESS 1914 01:13:34,000 --> 01:13:36,000 HAS TO SPEAK CLEARLY TO 1915 01:13:36,000 --> 01:13:39,000 CRIMINIZOFFICIAL ACTS OF THE 1916 01:13:39,000 --> 01:13:40,000 PRESIDENT BY A SCIC 1917 01:13:40,000 --> 01:13:41,000 REFERENCE. 1918 01:13:41,000 --> 01:13:44,000 THAT SEEMS TO BE WH E OLC 1919 01:13:44,000 --> 01:13:45,000 OPINIONS SUGGEST. 1920 01:13:45,000 --> 01:13:47,000 I KNOW YOU HAVE A LITTLE BIT OF 1921 01:13:47,000 --> 01:13:48,000 A EEMENT WITH THAT. 1922 01:13:48,000 --> 01:13:51,000 >> JTI KAVANAUGH, I WOULD 1923 01:13:51,000 --> 01:13:54,000 LIKE TO TAKE ALL OF THOSE IN 1924 01:13:54,000 --> 01:13:56,000 TURN BECAUSE I DO NOT THINK THIS 1925 01:13:56,000 --> 01:13:58,000 COURT'S CASES SPEAK THAT BROADLY 1926 01:13:58,000 --> 01:13:59,000 AND I DON'T THINK THE OFFICE OF 1927 01:13:59,000 --> 01:14:02,000 LEGALOUEL'S OPINIONS STAND 1928 01:14:02,000 --> 01:14:04,000 FOR THIS BROAD PROPOSITION THAT 1929 01:14:04,000 --> 01:14:06,000 LE THE PRESIDENT IS SPECIFICALLY NAM HIS NOT IN 1930 01:14:06,000 --> 01:14:07,000 THE STATUTE AND I DON'T THINK 1931 01:14:07,000 --> 01:14:10,000 THAT ISESSARY TO AFFORD 1932 01:14:10,000 --> 01:14:12,000 ADVOCATEROTECTION FOR THE 1933 01:14:12,000 --> 01:14:13,000 PRESIDENT'S VALID ARTIE O 1934 01:14:13,000 --> 01:14:15,000 FUNCTIONS. >> SORRY TO INTERRUPT BUT I WANT 1935 01:14:15,000 --> 01:14:17,000 TOET THIS OUT AND YOU CAN 1936 01:14:17,000 --> 01:14:18,000 INCORPORATE IT 1937 01:14:18,000 --> 01:14:20,000 YOU SET UNLESS THERE IS A 1938 01:14:20,000 --> 01:14:23,000 SERIOUS CONSTITUTIALUESTION. 1939 01:14:23,000 --> 01:14:25,000 IT IS A SERIOUS CONSTITUTIONAL 1940 01:14:25,000 --> 01:14:27,000 QUESTION WHETHER A STATUTE CAN 1941 01:14:27,000 --> 01:14:28,000 BE APPLIED TO THEREDENT'S 1942 01:14:28,000 --> 01:14:32,000 OFFICIAL ACTS, SO WOULDN'T YOU 1943 01:14:32,000 --> 01:14:34,000 ALWAYS INTERPRET THE STATE NOT 1944 01:14:34,000 --> 01:14:36,000 TO APPLY TO THE PRESIDENT EVEN 1945 01:14:36,000 --> 01:14:38,000 UNDER YOUR FORMULATION UES 1946 01:14:38,000 --> 01:14:39,000 CONGRESS HAD SPOKEN WITH 1947 01:14:39,000 --> 01:14:42,000 CLARITY? >> I DON'T THINK 1948 01:14:42,000 --> 01:14:44,000 ACROSS-THE-BOARD THAT A SERIOUS 1949 01:14:44,000 --> 01:14:45,000 CONSTITUTIONAL QUESTION EXISTS 1950 01:14:45,000 --> 01:14:48,000 ON APPLYING A CRIMINAL 1951 01:14:48,000 --> 01:14:49,000 PROSECUTN THE PRESIDENT. 1952 01:14:49,000 --> 01:14:54,000 >> T PROBLEM IS THE VAGUENESS 1953 01:14:55,000 --> 01:14:57,000 THAT CAN BE USED AGAINST A LOT 1954 01:14:57,000 --> 01:14:58,000 OF PRESIDENTIAL ACTIVITIES 1955 01:14:58,000 --> 01:15:01,000 HISTORICALLY WITH A CREATIVE 1956 01:15:01,000 --> 01:15:02,000 PROSECUTOR WHO WANTS TO GO AFTER 1957 01:15:02,000 --> 01:15:06,000 ESIDENT. >> LET ME TRY TO -- 1958 01:15:06,000 --> 01:15:09,000 >> THAT IS WHAT WE ARE TALKING 1959 01:15:09,000 --> 01:15:12,000 ABOUT HISTORICALLY IS THE RISK 1960 01:15:12,000 --> 01:15:13,000 AND GOING FORWARD, THE RISK. 1961 01:15:13,000 --> 01:15:14,000 YOU CAN TAKE ALL OF THAT. 1962 01:15:14,000 --> 01:15:17,000 >> I TEND TO PUT THE QUESTION 1963 01:15:17,000 --> 01:15:19,000 ABOUT THE RISK IS VERY SERIOUS. 1964 01:15:19,000 --> 01:15:20,000 IT IS A QUESTION THS COURT 1965 01:15:20,000 --> 01:15:24,000 HAS TO EVALUATE. 1966 01:15:24,000 --> 01:15:26,000 FOR THE EXECUTIVE BRANCH, OUR 1967 01:15:26,000 --> 01:15:28,000 VIEW IS THAT THERE IS A BALANCED 1968 01:15:28,000 --> 01:15:30,000 PROTECTION THAT BETTER SERVES 1969 01:15:30,000 --> 01:15:32,000 THE INTESTOF THE 1970 01:15:32,000 --> 01:15:34,000 NSTITUTION THAT INCORPORATES 1971 01:15:34,000 --> 01:15:36,000 BOTH ACCOUNTABILITY AND PROTECTION FOR THE PRESIDENT. 1972 01:15:36,000 --> 01:15:38,000 AND I WANT TO GO THROUGH THE 1973 01:15:38,000 --> 01:15:39,000 PROTECTIONTH DO EXIST. 1974 01:15:39,000 --> 01:15:42,000 BUT PERHAPS IT IS WORTH 1975 01:15:42,000 --> 01:15:43,000 RETURNING ATHEUTSET TO THE 1976 01:15:43,000 --> 01:15:44,000 STATUTORY CONSTRUCTION QUESTION 1977 01:15:44,000 --> 01:15:45,000 THAT YOU RAISED. 1978 01:15:45,000 --> 01:15:49,000 THE OFFICE OF LEGAL COUNSEL HAS 1979 01:15:49,000 --> 01:15:54,000 SA, IT DOES NOT NAME THE 1980 01:15:55,000 --> 01:15:56,000 PRESIDENTM SECTION 201 DOES NOT 1981 01:15:56,000 --> 01:15:57,000 NAME THE PRESIDENT. 1982 01:15:57,000 --> 01:16:01,000 >> ASSUME THAT IS RSAL. 1983 01:16:01,000 --> 01:16:03,000 THAT IS WHAT BREWSTER SAID. 1984 01:16:03,000 --> 01:16:06,000 >> THE BRIBERY STATU IN 607 1985 01:16:06,000 --> 01:16:08,000 SAYS THE PRESIDENT. 1986 01:16:08,000 --> 01:16:10,000 I'OT IIN FRONT OF ME. 1987 01:16:10,000 --> 01:16:13,000 THERE IS THAT. 1988 01:16:13,000 --> 01:16:15,000 LET ME JUST BACKUP THOUGH A 1989 01:16:15,000 --> 01:16:18,000 SECOND OF WHAT WAS A QUICK 1990 01:16:18,000 --> 01:16:19,000 EXCHANGE WITH JUSTICE KAVANAUGH 1991 01:16:19,000 --> 01:16:20,000 WA TO MAKE SURE I UNDERSTAND. 1992 01:16:20,000 --> 01:16:22,000 DID YOU AGREE THAT THERE E 1993 01:16:22,000 --> 01:16:24,000 SOME CORE FUNCTIONS OF THE 1994 01:16:24,000 --> 01:16:27,000 EXECUTIVE THAT CONGRESS CANNOT 1995 01:16:27,000 --> 01:16:29,000 CRIMINALIZE? >> YES. 1996 01:16:29,000 --> 01:16:32,000 >> YOU CAN CALL IT IMMUNITY OR 1997 01:16:32,000 --> 01:16:33,000 WERE CAN'T DO IT, BUT WHAT 1998 01:16:33,000 --> 01:16:35,000 IS THE DIFFERENC 1999 01:16:35,000 --> 01:16:37,000 >> WE CALL IT AN AS APPLIED 2000 01:16:37,000 --> 01:16:39,000 ARTICLE TO CHALLENGE. 2001 01:16:39,000 --> 01:16:43,000 >> CAN WE CALLT MUNITY FOR 2002 01:16:43,000 --> 01:16:44,000 SHORTHAND'S SAKE? 2003 01:16:44,000 --> 01:16:46,000 I THINK WE ARE NARROWING THE 2004 01:16:46,000 --> 01:16:47,000 GROUND OF DISPUTE. 2005 01:16:47,000 --> 01:16:49,000 ITEEMS TO ME THERE IS SOME 2006 01:16:49,000 --> 01:16:51,000 EAOU CONCEDE THAT THERE ARE 2007 01:16:51,000 --> 01:16:54,000 OFFICIAL ACTS THAT CONGRESS 2008 01:16:54,000 --> 01:16:55,000 CANNOT CRIMINALIZE AND NOW WE 2009 01:16:55,000 --> 01:16:58,000 E LKING ABOUT THE SCOPE. >> I DON'T THINK I SUGGEST, 2010 01:16:58,000 --> 01:17:00,000 THINK IT IS A SIGNIFICANT GAP 2011 01:17:00,000 --> 01:17:03,000 BETWEEN ANY OFFICIAL ACT AND THE 2012 01:17:03,000 --> 01:17:04,000 SMALL CORE OF EXCLUSIVE OFFICIAL 2013 01:17:04,000 --> 01:17:06,000 ACTS >> I GOT THAT, BUT I WANT TO 2014 01:17:06,000 --> 01:17:07,000 EXPLORE THAT. 2015 01:17:07,000 --> 01:17:10,000 R EXAMPLE, LET'S SAY A 2016 01:17:10,000 --> 01:17:14,000 PRESIDENT LEADS A MOSTLY 2017 01:17:14,000 --> 01:17:15,000 PEACEFUL PROTEST SIT IN IN FRONT 2018 01:17:15,000 --> 01:17:18,000 OF CONGRESS BECAUSE HE OBJECTS 2019 01:17:18,000 --> 01:17:19,000 TO A PIECE OF LEGISLATN AT 2020 01:17:19,000 --> 01:17:21,000 IS GOING THROUGH. 2021 01:17:21,000 --> 01:17:24,000 AND IT IN FACDEYS THE 2022 01:17:24,000 --> 01:17:26,000 PROCEEDINGS IN CONGRESS. 2023 01:17:26,000 --> 01:17:30,000 W,NDER 1512 C2, THAT MIGHT 2024 01:17:30,000 --> 01:17:32,000 BE CORRECTLY IMPEDING AN 2025 01:17:32,000 --> 01:17:33,000 OFFICIAL PROCEEDING. 2026 01:17:33,000 --> 01:17:38,000 IS THAT CORE AND THEREFORE 2027 01:17:39,000 --> 01:17:41,000 IMMUNIZED OR WHATEVER EUPHEMISM YOU WANT TO USE WITH THA 2028 01:17:41,000 --> 01:17:42,000 FOR IS THAT NOT CORE AND 2029 01:17:42,000 --> 01:17:45,000 THEREFORE PROSECUTABLE? 2030 01:17:45,000 --> 01:17:46,000 WITHOUT A CLEAR STATEMENT THAT APPLIES TO THERESIDENT. 2031 01:17:46,000 --> 01:17:50,000 >> IT IS NOT CORE. 2032 01:17:50,000 --> 01:17:51,000 THE CORE KINDS OF ACTIVITIES THE 2033 01:17:51,000 --> 01:17:53,000 COURT HAS ACKNOWLEDGED ARE THE 2034 01:17:53,000 --> 01:17:54,000 THGSHAT I WOULD RUN THROUGH 2035 01:17:54,000 --> 01:17:57,000 THE YOUNGSTOWN ANALYS. 2036 01:17:57,000 --> 01:17:59,000 IT IS A PRETTY SMALL SET, BUT 2037 01:17:59,000 --> 01:18:01,000 THINGS LIKE THE PARDON POWER, 2038 01:18:01,000 --> 01:18:03,000 THEIR POWER TO RECOGNIZE FOUR 2039 01:18:03,000 --> 01:18:05,000 NATIONS, THE POWER TO VETO 2040 01:18:05,000 --> 01:18:06,000 GIATION, THE POWER TO MAKE 2041 01:18:06,000 --> 01:18:08,000 APPOINTMENTS. 2042 01:18:08,000 --> 01:18:09,000 THESE ARE THINGS THE 2043 01:18:09,000 --> 01:18:11,000 CONSTITUTION SPECIFICALLY ALLOCATES TO T PRESIDENT. 2044 01:18:11,000 --> 01:18:15,000 >> SO A PRESIDENT THEN COULD BE 2045 01:18:15,000 --> 01:18:16,000 PROSECUTED FOR THE CONDUCT I DESCRIBED? 2046 01:18:16,000 --> 01:18:21,000 >> PROBABLY NOT BUT I WANT TO 2047 01:18:21,000 --> 01:18:24,000 EXPLAIN THE FRAMEWORK OF WHY I 2048 01:18:24,000 --> 01:18:26,000 DON'T THINK THAT THAT WOULD BE 2049 01:18:26,000 --> 01:18:30,000 PROSECUTION THAT WOULD BE VALID. 2050 01:18:30,000 --> 01:18:32,000 FIRST, I THINK YOU NEED TO RUN 2051 01:18:32,000 --> 01:18:36,000 THROUGH ALL OF THE N 2052 01:18:36,000 --> 01:18:41,000 CATEGORIES OF ANALYSIS. 2053 01:18:42,000 --> 01:18:44,000 YOU MAY WELL DEFAULT TO IT DOES 2054 01:18:44,000 --> 01:18:46,000 NOT APPLY. 2055 01:18:46,000 --> 01:18:50,000 >> THAT WAS MY QUESTION. 2056 01:18:50,000 --> 01:18:53,000 YOU SAID IT FELL OUTSIDE THAT 2057 01:18:53,000 --> 01:18:54,000 CORE WE WILL CALL IT IMMUNITY 2058 01:18:54,000 --> 01:18:56,000 FOR SIMPLICITY SAKE. 2059 01:18:56,000 --> 01:18:58,000 >> BUT THE IA SEPARATE 2060 01:18:58,000 --> 01:18:59,000 CATEGORY. 2061 01:18:59,000 --> 01:19:02,000 >>HY COULDN'T HE BE PROSECUT 2062 01:19:02,000 --> 01:19:04,000 FOR LEADING A CIVIL RIGHTS 2063 01:19:04,000 --> 01:19:05,000 PROTEST IN FRONT OF THE CAPITAL 2064 01:19:05,000 --> 01:19:07,000 AT DELAYS A VOTE ON A PIECE OF 2065 01:19:07,000 --> 01:19:08,000 IMPORTANT LEGISLATION? 2066 01:19:08,000 --> 01:19:10,000 >> I THINK WHAT YOU NEED TO DO 2067 01:19:10,000 --> 01:19:12,000 IS RUN THROUGH ALL OF THE VERY 2068 01:19:12,000 --> 01:19:16,000 PRESIDENT SPECIFIC LAYERS OF 2069 01:19:16,000 --> 01:19:18,000 ANALYSIS. 2070 01:19:18,000 --> 01:19:20,000 ONE IS WHETHER THE STATUTE WOULD 2071 01:19:20,000 --> 01:19:21,000 BE CONSTRUED NOT TO APPLY TO HIS 2072 01:19:21,000 --> 01:19:24,000 CONDUCT EVEN IF IT IS NOT PART 2073 01:19:24,000 --> 01:19:27,000 OF THAT SMALL CORE OF THINGS 2074 01:19:27,000 --> 01:19:30,000 CONGRESS CAN'T REGULATE AT ALL. 2075 01:19:30,000 --> 01:19:32,000 IF IT PREVENTS THE PRESIDENT FROM FULFILLING -- 2076 01:19:32,000 --> 01:19:37,000 >> HE DID SOMETHING MORE AND IT 2077 01:19:37,000 --> 01:19:39,000 IMPEDED AND SOUGHT TO INFLUENCE 2078 01:19:39,000 --> 01:19:41,000 AN OFFICIAL PROCEEDING. 2079 01:19:41,000 --> 01:19:45,000 >> WE ARE STARTING WITHHE 2080 01:19:45,000 --> 01:19:47,000 LAYERS OF PROTECTION AND WE ARE 2081 01:19:47,000 --> 01:19:49,000 DOWN THROUGH WHETHER THE 2082 01:19:49,000 --> 01:19:50,000 STATUTE WOULD BE CONSTRUED TO 2083 01:19:50,000 --> 01:19:54,000 APPLY TO HIM. 2084 01:19:54,000 --> 01:19:56,000 THEN THERE IS THE QUESTION OF 2085 01:19:56,000 --> 01:19:57,000 WHETHER HE HAS THE STATE OF 2086 01:19:57,000 --> 01:20:02,000 MIND. 2087 01:20:02,000 --> 01:20:05,000 >> NOBODY KNOWS WHAT CORRUPT 2088 01:20:05,000 --> 01:20:10,000 INNT MEANS. 2089 01:20:12,000 --> 01:20:14,000 HE KNOWS HE IS DOING WRONG, HE 2090 01:20:14,000 --> 01:20:16,000 KNOW HE SHOULDN'T BE BLOCKING A 2091 01:20:16,000 --> 01:20:19,000 COREMAN. >> LET ME GET TO THE NEXT LAYER 2092 01:20:19,000 --> 01:20:23,000 THAT THE PRESIDE DOESN'T -- 2093 01:20:23,000 --> 01:20:24,000 DOES HAVE AESS TO THE ATTORNEY 2094 01:20:24,000 --> 01:20:25,000 GENERAL AND GET REGULAR LEGA 2095 01:20:25,000 --> 01:20:29,000 ADVICE AND REGULAR GETS LEGAL 2096 01:20:29,000 --> 01:20:30,000 ADVICE FROM THE ATTORNEY GENERAL 2097 01:20:30,000 --> 01:20:32,000 ABOUT THE LAWFUL SCOPE OF THE 2098 01:20:32,000 --> 01:20:34,000 PRESIDENT'S ACTIVITIES. 2099 01:20:34,000 --> 01:20:36,000 THE ATTORNEY GENERAL ADVISES HIM 2100 01:20:36,000 --> 01:20:38,000 THAT AS AN INCIDENT OF HIS ARTICLE TO AUTHORITY AND IN 2101 01:20:38,000 --> 01:20:40,000 CARRNGUT THE FUNCTIONS OF 2102 01:20:40,000 --> 01:20:43,000 THE PRESIDENCY, HEAN LAWFULLY 2103 01:20:43,000 --> 01:20:45,000 PARTICIPATE IN THAT PROTEST. 2104 01:20:45,000 --> 01:20:46,000 IT IS KIND OF A FIRST AMENDMENT 2105 01:20:46,000 --> 01:20:49,000 ANALOG TO THE PRESIDENT'S 2106 01:20:49,000 --> 01:20:52,000 OFFICIAL POWERS, WHICH THE COURT 2107 01:20:52,000 --> 01:20:54,000 IS EXPLORI IOTHER CASES. 2108 01:20:54,000 --> 01:20:55,000 ALTERNATIVELY, THE ATTORNEY 2109 01:20:55,000 --> 01:20:58,000 GENERAL COULD ADVISE HIM, THERE 2110 01:20:58,000 --> 01:20:59,000 WAS NOTHING THE LANGUAGE OF 2111 01:20:59,000 --> 01:21:01,000 THE STATUTE THAT CARVES YOU OUT, 2112 01:21:01,000 --> 01:21:02,000 I DON'T SEE A SERIOUS 2113 01:21:02,000 --> 01:21:04,000 CONSTITUTIONAL QUEAND IT 2114 01:21:04,000 --> 01:21:06,000 AND I WOD VISE YOU NOT TO 2115 01:21:06,000 --> 01:21:08,000 VIOLATE ANY CRIMINAL LAW. 2116 01:21:08,000 --> 01:21:12,000 >> IF HE GETS A NEGATIVE OPINION 2117 01:21:12,000 --> 01:21:13,000 FROM THE ATTORNEY GENERAL, HE 2118 01:21:13,000 --> 01:21:16,000 STILL COULDN'T? 2119 01:21:16,000 --> 01:21:17,000 IF HE GETS ONE DOES IT ANYWAY, 2120 01:21:17,000 --> 01:21:21,000 HE COULD BE PROSECUTED? 2121 01:21:21,000 --> 01:21:22,000 >> IF WE ARE DOWN AT THAT LEVEL 2122 01:21:22,000 --> 01:21:23,000 WILL WE E KING IS WHETHER 2123 01:21:23,000 --> 01:21:24,000 THE PRESIDENT IS SUBJECT TO THE 2124 01:21:24,000 --> 01:21:29,000 CRIMINAL LAW AND OUR ANSWER IS 2125 01:21:29,000 --> 01:21:32,000 YES, HE IS SUBJECT TO THE 2126 01:21:32,000 --> 01:21:33,000 CRIMINAL LAW. 2127 01:21:33,000 --> 01:21:36,000 >> I UNDERSTAND THAT THE ONLY 2128 01:21:36,000 --> 01:21:38,000 THING COVERED BY THAT IS THE 2129 01:21:38,000 --> 01:21:41,000 PRESIDENT IS BARRED FROM SOLICITING OR RECEIVING FUNDS IN 2130 01:21:41,000 --> 01:21:42,000 ANY ROOM OR BUILDING. 2131 01:21:42,000 --> 01:21:43,000 >> THAT'S RRT. 2132 01:21:43,000 --> 01:21:48,000 >> OFFICIAL BUILDING. 2133 01:21:51,000 --> 01:21:53,000 SO, AS I UNDERSTAND THIS, THERE 2134 01:21:53,000 --> 01:21:55,000 ARTWLIMITED PROVISIONS 2135 01:21:55,000 --> 01:21:56,000 MENTIONING THE PRESIDENT THAT 2136 01:21:56,000 --> 01:21:57,000 ARE INCLUDED. 2137 01:21:57,000 --> 01:21:59,000 THERE IS A WHOLE NUMBER OF 2138 01:21:59,000 --> 01:22:01,000 PROVISIONS THAT EXCLUDE THE 2139 01:22:01,000 --> 01:22:03,000 PRESIDENT, MANY MORE THAT 2140 01:22:03,000 --> 01:22:06,000 EXCLUDE THE PRESIDENT, CORRECT? 2141 01:22:06,000 --> 01:22:11,000 IS A SMALL NUMBER ON BOTH SIDES. >> JUSTICE BARRETT MADE THE 2142 01:22:11,000 --> 01:22:12,000 POINT THAT IF WE SAY A PRESIDENT 2143 01:22:12,000 --> 01:22:14,000 CAN'T BE INCLUDED IN A CRIMINAL 2144 01:22:14,000 --> 01:22:16,000 LAW UNLESS EXPLICITLY NAMED, 2145 01:22:16,000 --> 01:22:20,000 THEN THAT WOULD BAR THE SENATE 2146 01:22:20,000 --> 01:22:21,000 FROM IMPEACHING HIM FOR HIGH 2147 01:22:21,000 --> 01:22:23,000 CRIMES ORISMEANORS, BECAUSE 2148 01:22:23,000 --> 01:22:24,000 THAT MEANS THAT HE IS NOT 2149 01:22:24,000 --> 01:22:25,000 SUBJECT TO THE LAW AT ALL. 2150 01:22:25,000 --> 01:22:27,000 CORRECT? 2151 01:22:27,000 --> 01:22:30,000 THAT IS A TAUTOLOGICAL. 2152 01:22:30,000 --> 01:22:34,000 >> I THINK WHAT JUSTICE BARRETT 2153 01:22:34,000 --> 01:22:35,000 WASANG AND WE WOULD AGREE 2154 01:22:35,000 --> 01:22:37,000 WITH THAT IS TT DER MY 2155 01:22:37,000 --> 01:22:38,000 FRIEND'S POSITION AFTER 2156 01:22:38,000 --> 01:22:39,000 IMPEACHMENT HE COULD BE 2157 01:22:39,000 --> 01:22:41,000 PROSECUTED, BUT UNDER HIS 2158 01:22:41,000 --> 01:22:43,000 STATUTORY CONSTRUCTION APPROACH 2159 01:22:43,000 --> 01:22:44,000 ERWOULD BE NOTHING TO 2160 01:22:44,000 --> 01:22:47,000 PROSECUTE HIM FOR. >> EXACTLY, THAT IS THE POINT IS 2161 01:22:47,000 --> 01:22:48,000 IF HE IS NOT COVEREDY E 2162 01:22:48,000 --> 01:22:49,000 CRIMINAL LAW, HE CBE 2163 01:22:49,000 --> 01:22:51,000 IMPEACHED FOR VIOLATING IT. 2164 01:22:51,000 --> 01:22:53,000 ALL RIGHT. 2165 01:22:53,000 --> 01:22:54,000 COULD WE GO FURTHER ON THIS 2166 01:22:54,000 --> 01:22:58,000 CLEAR STATEMENT RULE? 2167 01:22:58,000 --> 01:23:00,000 E SITUATIONS AND YOU MENTIONED 2168 01:23:00,000 --> 01:23:03,000 EARLIER IN WHICH WE HAVE LOOKED 2169 01:23:03,000 --> 01:23:04,000 SEE IF THE PRESIDENT IS 2170 01:23:04,000 --> 01:23:06,000 COVERED IS CONTEXTUAL, CORRECT? 2171 01:23:06,000 --> 01:23:08,000 >> CORRECT. 2172 01:23:08,000 --> 01:23:10,000 >> WHAT ARE THE FACTORS WE 2173 01:23:10,000 --> 01:23:12,000 NELLY LOOK AT? 2174 01:23:12,000 --> 01:23:13,000 I'M THINKING ABOUT WHETHER T 2175 01:23:13,000 --> 01:23:14,000 APA COVERS THE PRESIDENT. 2176 01:23:14,000 --> 01:23:15,000 >> CRECT. 2177 01:23:15,000 --> 01:23:18,000 >> WHAT WE DID WAS ANALYZE WHAT 2178 01:23:18,000 --> 01:23:21,000 POWERS WERE BEING GIVEN TO IN 2179 01:23:21,000 --> 01:23:24,000 THE LAWSUIT AND ETC. 2180 01:23:24,000 --> 01:23:26,000 WE LOOK AT WORDS, STRUCTURE, 2181 01:23:26,000 --> 01:23:29,000 SEPARATION OPORS IUE 2182 01:23:29,000 --> 01:23:31,000 RELATING TO OUR CASE LAW THAT 2183 01:23:31,000 --> 01:23:33,000 SAID YOU CAN'T DIRECT A 2184 01:23:33,000 --> 01:23:35,000 PRESIDENT TO DO ANYTHING AND 2185 01:23:35,000 --> 01:23:36,000 THIS WOULD HAVE BEEN A SUBTERFUGE FOR THAT. 2186 01:23:36,000 --> 01:23:37,000 >> ALL CORRECT. 2187 01:23:37,000 --> 01:23:42,000 >> SO I DON'KN WHY -- HOW 2188 01:23:43,000 --> 01:23:47,000 THEY WOULD FASON CLEAR STATEMENT RULE THAT WOULD SAY 2189 01:23:47,000 --> 01:23:48,000 WHEN A LOSS SS ANY PERSONS 2190 01:23:48,000 --> 01:23:51,000 CAN'T ACCEPT A BRIBE, THAT THAT 2191 01:23:51,000 --> 01:23:52,000 PERMITS THE PRESIDENT TO DO IT. 2192 01:23:52,000 --> 01:23:57,000 >> SO, I AGREE, STE 2193 01:23:57,000 --> 01:23:58,000 SOTOMAYOR, THAT THE WAY THAT 2194 01:23:58,000 --> 01:23:59,000 THIS COURT HAS INTERPRETED 2195 01:23:59,000 --> 01:24:03,000 STATUTES THADOARVE OUTHE 2196 01:24:03,000 --> 01:24:04,000 PRESIDENT WAS VERY CONTEXT 2197 01:24:04,000 --> 01:24:07,000 ECIFIC. 2198 01:24:07,000 --> 01:24:08,000 THE FRANKLIN CASE BASICALLY 2199 01:24:08,000 --> 01:24:10,000 INVOLVED A HOLDING THAT WE ARE 2200 01:24:10,000 --> 01:24:12,000 HIGHLY UNLIKELY TO SAY THAT THE 2201 01:24:12,000 --> 01:24:16,000 PRESIDENT IS AN AGENCY, 2202 01:24:16,000 --> 01:24:17,000 SOMETHING THE GOVERNMENT WOULD BE A PECULIAR 2203 01:24:17,000 --> 01:24:20,000 UNDERSTANDING OF AGENCY, WHEN 2204 01:24:20,000 --> 01:24:21,000 THE EFFECTIVE IT WOULDE AT 2205 01:24:21,000 --> 01:24:24,000 WE WOULD REVIEW THE PRESIDENT'S 2206 01:24:24,000 --> 01:24:25,000 DECISIONS UNDER STATUTES FOR 2207 01:24:25,000 --> 01:24:27,000 ABUSE OF DISCRETION, WHICH IS A 2208 01:24:27,000 --> 01:24:29,000 VERY EXTRAORDINARY THING TO DO, 2209 01:24:29,000 --> 01:24:33,000 EVEN GOING BACK TO MARBURY. 2210 01:24:33,000 --> 01:24:35,000 MARBURY SAYS DISCRETIONARY ACTS 2211 01:24:35,000 --> 01:24:36,000 OF THE PRESIDENT OR NOT THE KIND 2212 01:24:36,000 --> 01:24:39,000 OF THINGHEOURT REVIEWS. 2213 01:24:39,000 --> 01:24:44,000 >> GOINGACK TO WHAT SOME OF MY 2214 01:24:44,000 --> 01:24:47,000 COLLEAGUES HAVE ASKED YOU, THERE 2215 01:24:47,000 --> 01:24:50,000 APPEARS TO BE SOME NARROWING 2216 01:24:50,000 --> 01:24:54,000 PRINCIPLES THAT THE PRESIDE I 2217 01:24:54,000 --> 01:24:55,000 SUBJECT TO ALL CRIMINAL LAWS IN 2218 01:24:55,000 --> 01:24:57,000 ALL SITUATNS 2219 01:24:57,000 --> 01:24:58,000 DO YOU AGREE THAT THIS AFFECTS 2220 01:24:58,000 --> 01:25:01,000 RE POWERS THAT HE WOULD NOT BE 2221 01:25:01,000 --> 01:25:05,000 SUBJECT TO ANY LAWS THAT 2222 01:25:05,000 --> 01:25:06,000 ATTEMPTED TO LIMIT THOSE CORE POWERS? 2223 01:25:06,000 --> 01:25:07,000 TT'S CORRECT. 2224 01:25:07,000 --> 01:25:10,000 >> YOU ARE DEFINING CORE POWERS 2225 01:25:10,000 --> 01:25:11,000 AS THOSE SPECIFIED BY ARTICLE 2226 01:25:11,000 --> 01:25:13,000 TWO. >> THAT IS POTENTIALLY CORRECT, 2227 01:25:13,000 --> 01:25:16,000 YES. 2228 01:25:16,000 --> 01:25:17,000 AND THE OY RDS IN THE 2229 01:25:17,000 --> 01:25:22,000 CONSTITUTION OF THAT -- THAT 2230 01:25:22,000 --> 01:25:23,000 HAVE TO DO WITH THE PSIDENT IN 2231 01:25:23,000 --> 01:25:26,000 LAW IS THAHEHALL TAKE CARE 2232 01:25:26,000 --> 01:25:27,000 THAT THE LOBBY FAITHFULLY EXECUTED, CORRECT? 2233 01:25:27,000 --> 01:25:28,000 THAT'S RIGHT. 2234 01:25:28,000 --> 01:25:31,000 >> HARD TO IMAGINE THAT A 2235 01:25:31,000 --> 01:25:33,000 PRESIDENT WHBRKS THE LAW IS 2236 01:25:33,000 --> 01:25:34,000 ITHFULLY EXECUTING THE LAW, 2237 01:25:34,000 --> 01:25:36,000 CORRECT? >> HE HAS TO EXETE ALL OF THE 2238 01:25:36,000 --> 01:25:38,000 LAWS. 2239 01:25:38,000 --> 01:25:41,000 >> PRESIDENTS HAVE TO MAKE A LOT 2240 01:25:41,000 --> 01:25:43,000 OF TOUGH DECISIONS ABOUT 2241 01:25:43,000 --> 01:25:45,000 ING E LAW AND THEY HAVE 2242 01:25:45,000 --> 01:25:47,000 TO MAKE DECISIONS ABOUT 2243 01:25:47,000 --> 01:25:49,000 QUESTIONS THAT ARE UNSETTLED AND 2244 01:25:49,000 --> 01:25:52,000 THEY HAVE TO MAKE DECISIONS 2245 01:25:52,000 --> 01:25:54,000 BAD ON THE INFORMATION THAT IS 2246 01:25:54,000 --> 01:25:56,000 AIBLE. 2247 01:25:56,000 --> 01:25:57,000 DID I UNDERSTAND YOU TO SAY, 2248 01:25:57,000 --> 01:25:59,000 LL, IF HE MAKES AISKE, HE 2249 01:25:59,000 --> 01:26:02,000 MAKES A MISTAKEHE IS SUBJECT 2250 01:26:02,000 --> 01:26:03,000 TO CRIMINAL LAWS JUST LIKE 2251 01:26:03,000 --> 01:26:05,000 ANYBODY ELSE? 2252 01:26:05,000 --> 01:26:09,000 >> HE IS IN A SPECIAL POTI 2253 01:26:09,000 --> 01:26:11,000 FOR A NUMBER OF REASONS. 2254 01:26:11,000 --> 01:26:13,000 ONE IS THAT HE HAS ACCESS TO 2255 01:26:13,000 --> 01:26:14,000 LEGAL ADVICE ABOUT EVERYTHING HE 2256 01:26:14,000 --> 01:26:16,000 DOES. 2257 01:26:16,000 --> 01:26:18,000 HE IS UNDER A CONSTITUTIONAL 2258 01:26:18,000 --> 01:26:20,000 OBGAON WHERE HE IS SUPPOSED 2259 01:26:20,000 --> 01:26:22,000 TO BEAITHFUL TO THE LAWS AND 2260 01:26:22,000 --> 01:26:24,000 THE NSTUTION AND MAKING A 2261 01:26:24,000 --> 01:26:26,000 MISTAKE IS NOT WHAT LANDS YOU IN 2262 01:26:26,000 --> 01:26:29,000 A CRIMINAL PROSECUTION. 2263 01:26:29,000 --> 01:26:30,000 THERE HAS BEEN SOME TALK ABOUT 2264 01:26:30,000 --> 01:26:31,000 THE STATUTES ISSUED IN THIS 2265 01:26:31,000 --> 01:26:33,000 CASE. 2266 01:26:33,000 --> 01:26:35,000 I THINK THEY ARE FAIRLY 2267 01:26:35,000 --> 01:26:39,000 DESCRIBED AS STUTES ENGAGING 2268 01:26:39,000 --> 01:26:43,000 SPIRACIES TO DEFRAUD THE UNITED STATES WITH RESPECT TO 2269 01:26:43,000 --> 01:26:45,000 ONE OF THE MOST IMPORTANT 2270 01:26:45,000 --> 01:26:46,000 FUNCTIONS, NAMELY THE CERTIFICATION OF THE NEXT 2271 01:26:46,000 --> 01:26:50,000 PRESIDT. >> I DON'T WANT TO DISPUTE THAT 2272 01:26:50,000 --> 01:26:52,000 PARTICULAR APPLICATION OF THAT 2273 01:26:52,000 --> 01:26:53,000 371 CONSPIRACY TO DEFRAUD THE 2274 01:26:53,000 --> 01:26:58,000 UNITED STATES, BUT WOULD YOU NOT 2275 01:26:58,000 --> 01:27:00,000 AGREE THAT THAT IS A PULRLY 2276 01:27:00,000 --> 01:27:02,000 OPEN-ENDED STATUTORY 2277 01:27:02,000 --> 01:27:04,000 PROHIBITION? 2278 01:27:04,000 --> 01:27:05,000 THAT FRAUDND THAT PROVISION 2279 01:27:05,000 --> 01:27:08,000 UNDER LIKE MOST OTH FUD 2280 01:27:08,000 --> 01:27:13,000 PROVISIONS DOESN'TEQRE ANY 2281 01:27:14,000 --> 01:27:15,000 IMPAIRMENT OF A PROPERTY INTEREST? 2282 01:27:15,000 --> 01:27:19,000 IT IS DESIGNED TO PROTECT THE 2283 01:27:19,000 --> 01:27:21,000 FUNCTIONS OFHENITED STATES 2284 01:27:21,000 --> 01:27:23,000 GOVERNMENT AIS DIFFICULT TO THINK OF A MORE CRITICAL 2285 01:27:23,000 --> 01:27:26,000 FUNCTION THAN THE CERTIFICATION OF WHO WON THE ELECTION. 2286 01:27:26,000 --> 01:27:29,000 >> I'M NOT DISCUSSING THE 2287 01:27:29,000 --> 01:27:30,000 PARTICULAR FACTS OF THIS CE 2288 01:27:30,000 --> 01:27:34,000 BUT IT APPLIES TO ANY FRAUD THAT 2289 01:27:34,000 --> 01:27:35,000 INTERFERES SERIOUSLY WITH ANY 2290 01:27:35,000 --> 01:27:39,000 GOVERNMENT OPERATION. >> WHAT THE GOVERNMENT NEEDS TO 2291 01:27:39,000 --> 01:27:42,000 OWS AN INTENTO IMPEDE, 2292 01:27:42,000 --> 01:27:44,000 INTERFERE, OREFT A LAWFUL 2293 01:27:44,000 --> 01:27:45,000 GOVERNMENTAL FUNCTION BY 2294 01:27:45,000 --> 01:27:47,000 DECEPTION AND IT HAS TO BE DONE. 2295 01:27:47,000 --> 01:27:49,000 THESE ARE NOT THE KINDS OF 2296 01:27:49,000 --> 01:27:50,000 ACTIVITIES THAT K ANY OF 2297 01:27:50,000 --> 01:27:53,000 US WOULD THINK A PRESIDENT NEEDS 2298 01:27:53,000 --> 01:27:54,000 TO ENGAGE IN IN ORDER TO FULFILL 2299 01:27:54,000 --> 01:27:59,000 HIS ARTICLE TWO DUTIES AND 2300 01:28:00,000 --> 01:28:01,000 PARTICULAR A CASE LIKE THIS ONE. 2301 01:28:01,000 --> 01:28:03,000 I NT TO PICK UP SOMETHING THE 2302 01:28:03,000 --> 01:28:06,000 URT SAID EARLIER ABOUT A 2303 01:28:06,000 --> 01:28:08,000 PUBLIC OFFICIAL ACTING 2304 01:28:08,000 --> 01:28:12,000 ACHIEVE PUBLIC ENDS. 2305 01:28:12,000 --> 01:28:15,000 AS APPLIED TO THIS CASE, THE 2306 01:28:15,000 --> 01:28:17,000 PRESIDENT HAS NO FUNCTIONS WITH 2307 01:28:17,000 --> 01:28:19,000 RESPECT TO THE CERTIFICATION OF 2308 01:28:19,000 --> 01:28:20,000 THE WINNER OF THE PRESIDENAL 2309 01:28:20,000 --> 01:28:21,000 ELECTION. 2310 01:28:21,000 --> 01:28:23,000 IT SEEMS LIKELY THAT THE FRAMERS 2311 01:28:23,000 --> 01:28:26,000 DESIGNED THE CONSTUTN THAT 2312 01:28:26,000 --> 01:28:27,000 WAY BECAUSE AT THE TIME OF THE 2313 01:28:27,000 --> 01:28:29,000 FOUNDING PRESIDENTS HAD NO TWO 2314 01:28:29,000 --> 01:28:31,000 TERM LIMIT, THEY COULD RUN AGAIN 2315 01:28:31,000 --> 01:28:35,000 D AIN. 2316 01:28:35,000 --> 01:28:38,000 THEY WERE EXPECTED POTENTIALLY TO WANT TO DO THAT. 2317 01:28:38,000 --> 01:28:39,000 THE POTENTIAL FOR SELF-INTEREST 2318 01:28:39,000 --> 01:28:41,000 WOULDXPLAIN WHY THE STATES 2319 01:28:41,000 --> 01:28:43,000 CONDUCT THE ELECTIONS, THEY SEND 2320 01:28:43,000 --> 01:28:48,000 ELTORS TO CERTIFY WHO WON 2321 01:28:48,000 --> 01:28:50,000 THOSE ELECTIONS AND TPRIDE 2322 01:28:50,000 --> 01:28:53,000 VOTES, AND THEN CONGRESSN 2323 01:28:53,000 --> 01:28:55,000 EXTRAORDINARY JOINT SESSION CERTIFIES THE VOTE. 2324 01:28:55,000 --> 01:28:57,000 E PRESIDENT DOESN'T HAVE AN 2325 01:28:57,000 --> 01:28:58,000 OFFICI RE IN THAT PROCEEDING. 2326 01:28:58,000 --> 01:29:01,000 IT IS DIFFICULT FOR ME TO 2327 01:29:01,000 --> 01:29:02,000 UNDERSTAND HOW THERE COULD BE A 2328 01:29:02,000 --> 01:29:04,000 SERIOUS CONSTITUTIONAL QUESTION 2329 01:29:04,000 --> 01:29:05,000 ABOUT SAYING YOU CAN'T USE FRAUD 2330 01:29:05,000 --> 01:29:08,000 TO DEFEAT THAT FUNCTION, YOU 2331 01:29:08,000 --> 01:29:10,000 CAN'T OBSTRUCTED THROUGH 2332 01:29:10,000 --> 01:29:11,000 DECEPTION, YOU CAN'T DEPRIVE 2333 01:29:11,000 --> 01:29:13,000 MILLIONS OFOTS OF THEIR 2334 01:29:13,000 --> 01:29:15,000 RIGHT TO HAVE THEIR VOTE COUNTED 2335 01:29:15,000 --> 01:29:16,000 FOR THE CANDIDATES WHO THEY 2336 01:29:16,000 --> 01:29:18,000 CHOSE. >> THANK YOU, COUNSEL. 2337 01:29:18,000 --> 01:29:20,000 STICE THOMAS? 2338 01:29:20,000 --> 01:29:25,000 JUSTICE ALITO? 2339 01:29:25,000 --> 01:29:28,000 >> WE ST BRIEFLY REVIEW 2340 01:29:28,000 --> 01:29:30,000 THE LAYERS OF PROTECTION YOU 2341 01:29:30,000 --> 01:29:31,000 THINK EXISTS? 2342 01:29:31,000 --> 01:29:32,000 I'M GOING TO START WITH WHAT THE 2343 01:29:32,000 --> 01:29:34,000 D.C. CIRCUITS AT. 2344 01:29:34,000 --> 01:29:37,000 THE FIRST LAYER OF PROTECTIO IS 2345 01:29:37,000 --> 01:29:38,000 THAT ATTORNEYS GENERAL AND OTHER 2346 01:29:38,000 --> 01:29:40,000 JUSTICE DEPARTMENT ATTORYS CAN 2347 01:29:40,000 --> 01:29:41,000 BE TRUSTED TO ACT IN A 2348 01:29:41,000 --> 01:29:42,000 PROFESSIONAL AND ETHICAL MANNER. 2349 01:29:42,000 --> 01:29:44,000 >> YES. 2350 01:29:44,000 --> 01:29:47,000 >> HOW ROBUST IS THAT 2351 01:29:47,000 --> 01:29:50,000 PROTECTION? 2352 01:29:50,000 --> 01:29:52,000 THE VAST MAJORITY OF ATTORNEYS 2353 01:29:52,000 --> 01:29:54,000 GENERAL AND JUSTICE DEPARTMENT 2354 01:29:54,000 --> 01:29:55,000 ATTORNEYS AND WE BOTH SERVED IN 2355 01:29:55,000 --> 01:29:56,000 THE JUSTICE DEPARTNTOR A 2356 01:29:56,000 --> 01:29:59,000 LONG TIME ARE HONORABLEEOE 2357 01:29:59,000 --> 01:30:00,000 AND THEY TAKE THEIR 2358 01:30:00,000 --> 01:30:02,000 PROFESSIONAL, ETHICAL 2359 01:30:02,000 --> 01:30:04,000 RESPONSIBILITIES SERIOUSLY, BUT 2360 01:30:04,000 --> 01:30:05,000 THERE HAVE BEEN EXCEPTIONS BOTH 2361 01:30:05,000 --> 01:30:06,000 AMONG ATTORNEYS GENERAL AND 2362 01:30:06,000 --> 01:30:09,000 FEDERAL PROSECUTORS. 2363 01:30:09,000 --> 01:30:10,000 >> THERE HAV RARE 2364 01:30:10,000 --> 01:30:12,000 EXCEPTIONS, JUSTICE ALITOBU 2365 01:30:12,000 --> 01:30:16,000 OF PTECTION, I DO THINK THISYERS 2366 01:30:16,000 --> 01:30:18,000 IS THE STARTING POINT AND IFHE 2367 01:30:18,000 --> 01:30:19,000 COURTS HAVE CONCERNS ABOUT THE 2368 01:30:19,000 --> 01:30:21,000 ROBUSTNESS OF IT, I WOULD 2369 01:30:21,000 --> 01:30:23,000 SUGGEST LOOKING AT THE CHARGES 2370 01:30:23,000 --> 01:30:26,000 IN THE CASE. >> I'M GOING TO LKBOUT THIS 2371 01:30:26,000 --> 01:30:29,000 IN THE ABSTRACT BECSEHAT IS 2372 01:30:29,000 --> 01:30:31,000 BEFORE US DOES INVOLVE THIS 2373 01:30:31,000 --> 01:30:32,000 PAICAR CASE, WHICH IS 2374 01:30:32,000 --> 01:30:35,000 IMMENSELY IMPORTANT, BUT 2375 01:30:35,000 --> 01:30:37,000 ATEVER WE DECIDE WILL APPLY TO 2376 01:30:37,000 --> 01:30:40,000 ALL FUTURE PRESIDENT 2377 01:30:40,000 --> 01:30:42,000 AS FOR ATTORNEYS GENERAL, TWO HAVE BEEN CONVICTED CMINAL 2378 01:30:42,000 --> 01:30:45,000 OFFENSES IN OFFICE. 2379 01:30:45,000 --> 01:30:46,000 OTHERS, A TCLL PALMER COMES 2380 01:30:46,000 --> 01:30:50,000 TO MIND, WHO IS WIDELY REGARDED 2381 01:30:50,000 --> 01:30:51,000 AS HAVING ABUSED THE POWER OF 2382 01:30:51,000 --> 01:30:52,000 HIS OFFICE. 2383 01:30:52,000 --> 01:30:53,000 WOULD YOU AGREE WITH THAT? 2384 01:30:53,000 --> 01:30:56,000 >> I WOULD, BUT THEY ARE 2385 01:30:56,000 --> 01:30:58,000 OFFICIALS IN A LONG LINE OF 2386 01:30:58,000 --> 01:31:00,000 ATTORNEYS GENERAL WHO DID NOT 2387 01:31:00,000 --> 01:31:01,000 AND IN DEPARTMENT OF JUSTICE 2388 01:31:01,000 --> 01:31:04,000 STAFFED MTIPLE PEOPLE WOULD 2389 01:31:04,000 --> 01:31:06,000 DO IT THEIR OFFICE. 2390 01:31:06,000 --> 01:31:08,000 JUSTICE ALITO, THE POINT 2391 01:31:08,000 --> 01:31:10,000 WANTED TO MAKE ABOUT THIS CASE 2392 01:31:10,000 --> 01:31:13,000 DOES GO TO THE GENERAL PROPOSITION. 2393 01:31:13,000 --> 01:31:14,000 THE ALLEGATIONS ABOUT THE MISUSE 2394 01:31:14,000 --> 01:31:16,000 OF THE DEPARTMENT OF JUSTICE TO 2395 01:31:16,000 --> 01:31:20,000 PERPETUATE ELECTION FRAUD SHOW 2396 01:31:20,000 --> 01:31:21,000 EXACTLY HOW THE DEPARTMENT OF 2397 01:31:21,000 --> 01:31:23,000 JUSTICE FUNCTIONS IN THE WAY 2398 01:31:23,000 --> 01:31:24,000 ATT IS SUPPOSED TO. 2399 01:31:24,000 --> 01:31:26,000 PETIER IS ALLEGED TO HAVE 2400 01:31:26,000 --> 01:31:29,000 JUSTICE TO SEND FRAUDULEENT OF 2401 01:31:29,000 --> 01:31:31,000 LETTERS TO THE STATES TO GET 2402 01:31:31,000 --> 01:31:32,000 THEM TO REVERSE ELECTORAL 2403 01:31:32,000 --> 01:31:35,000 RESULTS. >> I UNDERSTAND THAT. 2404 01:31:35,000 --> 01:31:40,000 BUT AS I SAID, THI CASE WILL 2405 01:31:41,000 --> 01:31:43,000 HAVE EFFECTS THAT GO FAR BEYOND 2406 01:31:43,000 --> 01:31:44,000 THIS PARTICULAR PROSECUTION. 2407 01:31:44,000 --> 01:31:46,000 SO MOVING ON TO THE SECOND LEVEL 2408 01:31:46,000 --> 01:31:48,000 OF PROTECTION THAT THE D.C. 2409 01:31:48,000 --> 01:31:50,000 CIRCUITS CITED. 2410 01:31:50,000 --> 01:31:51,000 FEDERAL GRAND JURIES WILL SHID 2411 01:31:51,000 --> 01:31:53,000 FORMER PRESIDENTS FROM 2412 01:31:53,000 --> 01:31:55,000 UNWARRANTED INDICTMENTS. 2413 01:31:55,000 --> 01:31:56,000 HOW MUCH PROTECTION T? 2414 01:31:56,000 --> 01:31:58,000 >> IT AFFORDS TWO LEVELS OF 2415 01:31:58,000 --> 01:32:01,000 PROTTI. 2416 01:32:01,000 --> 01:32:02,000 ONE IS THE PROBABLE CAUSE 2417 01:32:02,000 --> 01:32:04,000 FINDING REQUIRES EVIDENCE. 2418 01:32:04,000 --> 01:32:06,000 SOME OF THE FEARS ABOUT 2419 01:32:06,000 --> 01:32:08,000 GROUNDLESS PROSECUTIONS AREN'T 2420 01:32:08,000 --> 01:32:09,000 SUPPORTED BY EVIDENCE AND THEY 2421 01:32:09,000 --> 01:32:10,000 ARE NOT GOING TO GET OUT OF THE 2422 01:32:10,000 --> 01:32:14,000 STARTING GATE. >> THERE IS THE OLD THOUGHT 2423 01:32:14,000 --> 01:32:17,000 ABOUT INDICTING A HAM SANDWICH. 2424 01:32:17,000 --> 01:32:18,000 YOU HAD A LOT OF EXPERIENCE IN 2425 01:32:18,000 --> 01:32:20,000 THJUSTICE DEPARTMENT. 2426 01:32:20,000 --> 01:32:23,000 YOU COME ACROSS A LOT OFAS 2427 01:32:23,000 --> 01:32:25,000 WHERE THE U.S. ATTORNEY OR 2428 01:32:25,000 --> 01:32:26,000 ANOTHER FEDERAL PROSECUTOR 2429 01:32:26,000 --> 01:32:28,000 REALLY WANTED TO INDICT A CASE 2430 01:32:28,000 --> 01:32:29,000 IN THE GRAND JURY REFUSED TO DO 2431 01:32:29,000 --> 01:32:31,000 SO? >> THERE ARE SUCH CASES. 2432 01:32:31,000 --> 01:32:33,000 YES. 2433 01:32:33,000 --> 01:32:37,000 >> OE ERE IS ANY CLIPS TOO. 2434 01:32:37,000 --> 01:32:38,000 [LAUGHTER] 2435 01:32:38,000 --> 01:32:42,000 >> FOR THE MOST REASONS 2436 01:32:42,000 --> 01:32:43,000 ECUTORS HAVE NO REASON TO 2437 01:32:43,000 --> 01:32:45,000 BRING A CA T A GRAND JURY AND 2438 01:32:45,000 --> 01:32:46,000 SECURE AN INDICTMENT WHERE THEY 2439 01:32:46,000 --> 01:32:49,000 DON'T HAVE EVIDENCE TO PROVE 2440 01:32:49,000 --> 01:32:50,000 GUILT UNDER ABLE DOUBT. 2441 01:32:50,000 --> 01:32:51,000 IT IS SELF-DEFEATING. 2442 01:32:51,000 --> 01:32:54,000 >> THE THIRD IS THAT THEY ENJOY 2443 01:32:54,000 --> 01:32:57,000 ALL THE PTEIONS AFFORDED ALL 2444 01:32:57,000 --> 01:33:00,000 CRIMIN DEFENDANTS. 2445 01:33:00,000 --> 01:33:01,000 TH BE TRUE AT THE END OF 2446 01:33:01,000 --> 01:33:04,000 THE DAY BUT A LOT CAN HAPPEN BETWEEN E TIME WHEN AN 2447 01:33:04,000 --> 01:33:06,000 INDICTMENT IS RETURNED AND THE 2448 01:33:06,000 --> 01:33:08,000 TIME WHEN THE FOER PRESIDENT 2449 01:33:08,000 --> 01:33:11,000 FINALLY GETS VINDICATION, 2450 01:33:11,000 --> 01:33:12,000 PERHAPS ON APPEAL. 2451 01:33:12,000 --> 01:33:15,000 ISN'T THAT CORCT 2452 01:33:15,000 --> 01:33:16,000 T IS CORRECT, BUT I THINK WE 2453 01:33:16,000 --> 01:33:18,000 SHOULD CONSIDER THE HISTORY OF 2454 01:33:18,000 --> 01:33:19,000 THIS COUNTRY. 2455 01:33:19,000 --> 01:33:21,000 AS MEMBERS OF THE COURT HAVE 2456 01:33:21,000 --> 01:33:23,000 OBSERVED, IT IS BAKED INTO THE 2457 01:33:23,000 --> 01:33:25,000 CONSTITUTION THAT ANY PRESIDENT 2458 01:33:25,000 --> 01:33:27,000 KNOWS THAT THEY ARE EXPOSED TO 2459 01:33:27,000 --> 01:33:32,000 POTENTIAL IMAL PROSECUTION. 2460 01:33:35,000 --> 01:33:38,000 IT IS COMMON GROUND THAT ALL FORMER PRESIDENTS HAVE KNOWN 2461 01:33:38,000 --> 01:33:39,000 THAT THEY COULD BE INDICTED AND 2462 01:33:39,000 --> 01:33:41,000 CONVICTED. 2463 01:33:41,000 --> 01:33:42,000 AND WATERGATE CEMENTED THAT 2464 01:33:42,000 --> 01:33:45,000 UNDERSTAIN 2465 01:33:45,000 --> 01:33:48,000 THE WATERGATE SMOKING GUN CASE 2466 01:33:48,000 --> 01:33:50,000 INVOLVED PRESIDENT NIXON AND HR 2467 01:33:50,000 --> 01:33:52,000 HALDEMAN TALKING ABOUT AND THEN 2468 01:33:52,000 --> 01:33:56,000 DECIDING TO USE THE CIA TO GIVE 2469 01:33:56,000 --> 01:33:58,000 A BOGUS STORY TO THE FBI TO SHUT 2470 01:33:58,000 --> 01:34:03,000 DOWN A CRIMINAL INVESTIGATION. >> MR. SOUR AND OTHERHA 2471 01:34:03,000 --> 01:34:07,000 IDENTIFIED EVENTS IN THE PAST WEREREDENTS HAVE ENGAGED IN 2472 01:34:07,000 --> 01:34:09,000 CONDUCT THAT MIGHT HAVEEEN 2473 01:34:09,000 --> 01:34:12,000 CHARGED AS FEDERAL CRIMES AND 2474 01:34:12,000 --> 01:34:16,000 YO SAY, THAT IS NOT REALLY UE 2475 01:34:16,000 --> 01:34:18,000 AND THIS IS PAGE 42 OF YOUR 2476 01:34:18,000 --> 01:34:21,000 BRIEF, SO WHAT ABOUT PRESIDENT 2477 01:34:21,000 --> 01:34:23,000 FRANKLIN DOOVELT DECISION TO 2478 01:34:23,000 --> 01:34:26,000 INTERN JAPANESE AMERICANS DUNG 2479 01:34:26,000 --> 01:34:27,000 WORLD WAR II? 2480 01:34:27,000 --> 01:34:31,000 COULDN'T THAT HAVE BEEN CHARGED 2481 01:34:31,000 --> 01:34:36,000 CONSPIRACY AGAINST CIVIL RIGHTS? >> TODAY, YES, GIVEN THE COURT'S 2482 01:34:37,000 --> 01:34:38,000 DECISION IN TRUMP VERSUS UNITED 2483 01:34:38,000 --> 01:34:43,000 ATES IN WHICH -- TRUMP VERS 2484 01:34:44,000 --> 01:34:45,000 HAWAII IN WHICH THE COURT SD 2485 01:34:45,000 --> 01:34:48,000 KOREMATSU WAS OVERRULED AND 2486 01:34:48,000 --> 01:34:49,000 PRESIDENT ROOSEVELT MADE THE 2487 01:34:49,000 --> 01:34:50,000 DECISION WITH THE ADVICEF HIS 2488 01:34:50,000 --> 01:34:51,000 ATTORNEY GENERAL. 2489 01:34:51,000 --> 01:34:56,000 >> IS THAT REALLY TRUE? 2490 01:34:58,000 --> 01:34:59,000 I THOUGHT THERE WAS RELYO 2491 01:34:59,000 --> 01:35:00,000 THREAT OF SABOTAGE, AS DID J 2492 01:35:00,000 --> 01:35:01,000 EDGAR HOOVER? 2493 01:35:01,000 --> 01:35:04,000 >> THERE IS A LOT OF HISTORICAL 2494 01:35:04,000 --> 01:35:06,000 CONTROVERSY. 2495 01:35:06,000 --> 01:35:10,000 THAT OCCURRED DURING WARME AND 2496 01:35:10,000 --> 01:35:13,000 IT IMPLICATES A POTENTIAL COMMANDER-IN-CHIEF CONCERNS, 2497 01:35:13,000 --> 01:35:14,000 CONCERNS ABOUT THE EXIGENCIES OF 2498 01:35:14,000 --> 01:35:18,000 NATIONAL DEFENSE THAT MIGHT 2499 01:35:18,000 --> 01:35:20,000 PROVIDE AN AS APPLIED ARTICLE TO 2500 01:35:20,000 --> 01:35:21,000 CHALLENGE ATHEIME. 2501 01:35:21,000 --> 01:35:23,000 I'M NOT SUNG TODAY. 2502 01:35:23,000 --> 01:35:26,000 BUT THE IDEA THAT A DECISION 2503 01:35:26,000 --> 01:35:29,000 ATAS MADE AND WAS ENDORSED 2504 01:35:29,000 --> 01:35:32,000 BY THE COURT PERHAPSRONGLY 2505 01:35:32,000 --> 01:35:35,000 WOULD SUPPORINAL PROSECUTION UNDER 241 WHICH 2506 01:35:35,000 --> 01:35:36,000 QUIRES UNDER KNIGHTED STATES 2507 01:35:36,000 --> 01:35:40,000 THAT IT HAD BEEN MADE SPECIFIC 2508 01:35:40,000 --> 01:35:41,000 SO THERE IS NOTICE TO THE 2509 01:35:41,000 --> 01:35:44,000 PRESID >> WE COULD GO T OTHER 2510 01:35:44,000 --> 01:35:45,000 HISTORICAL EXAMPLES, I WON'T DO 2511 01:35:45,000 --> 01:35:46,000 THAT. 2512 01:35:46,000 --> 01:35:48,000 LET ME TOUCH BRIEFLY ON A COUPLE 2513 01:35:48,000 --> 01:35:50,000 OF OTHER THINGS. 2514 01:35:50,000 --> 01:35:51,000 THE RELEVANCE OF ADVICE OF 2515 01:35:51,000 --> 01:35:52,000 COAND I WASN'T CLEAR WHAT 2516 01:35:52,000 --> 01:35:54,000 YOUR ANSWER IS. 2517 01:35:54,000 --> 01:35:56,000 IF THE PRESIETS ADVICE 2518 01:35:56,000 --> 01:35:58,000 FROM THE ATTORNEY GENERAL THAT 2519 01:35:58,000 --> 01:36:01,000 SOMETHING IS LAWFUL THAT AN 2520 01:36:01,000 --> 01:36:05,000 ABSOLUTE DEFENSE? >>ES, I THINK THAT IT IS UNDER 2521 01:36:05,000 --> 01:36:08,000 THE PRINCIPLE OF ENTRAPMENT. 2522 01:36:08,000 --> 01:36:10,000 THIS IS A DUE S DOCTRINE 2523 01:36:10,000 --> 01:36:12,000 THAT WE REFERRED TO IN OUR 2524 01:36:12,000 --> 01:36:17,000 BRIEF. 2525 01:36:17,000 --> 01:36:20,000 WE CITED AUTHORITY OF THIS COURT 2526 01:36:20,000 --> 01:36:22,000 THAT IF AN AUTHORIZED GOVNMT 2527 01:36:22,000 --> 01:36:23,000 REPRESENTATIVE TELLS YOU THAT 2528 01:36:23,000 --> 01:36:24,000 WH Y ARE ABOUT TO DO IS 2529 01:36:24,000 --> 01:36:28,000 LAWFUL, IT WOULD BE A ROOT 2530 01:36:28,000 --> 01:36:29,000 VIOLATION OF DUE PROCESS TO 2531 01:36:29,000 --> 01:36:34,000 PRECUTE YOU FOR THAT. >> W'T THAT GIVE PRESIDENTS 2532 01:36:34,000 --> 01:36:35,000 INCENTIVE TO BE SURE TO PICK AN 2533 01:36:35,000 --> 01:36:39,000 ATTORNEY GENERAL WHO WILL 2534 01:36:39,000 --> 01:36:40,000 RELIABLY TELL THE PRESIDT AT 2535 01:36:40,000 --> 01:36:41,000 IT IS LAWFUL TO DO WHATEV T 2536 01:36:41,000 --> 01:36:44,000 PRESIDENT WANTS TO DO IF THERE 2537 01:36:44,000 --> 01:36:46,000 IS ANY POSSIBLY CONCEIVABLE 2538 01:36:46,000 --> 01:36:47,000 ARGUMENT IN FAVOR OF IT? 2539 01:36:47,000 --> 01:36:51,000 >> THINK THE CONSTITUTIONAL 2540 01:36:51,000 --> 01:36:53,000 STRUCTURE PROTECTS AGAINST THAT RI 2541 01:36:53,000 --> 01:36:54,000 THE PRESIDENT NOMINATES THE 2542 01:36:54,000 --> 01:36:56,000 ATTORNEY GENERAL AND THE SENATE 2543 01:36:56,000 --> 01:36:58,000 PROVIDES AICAND CONSENT. 2544 01:36:58,000 --> 01:37:00,000 THESE ARE THE STRUCTURAL CHECKS 2545 01:37:00,000 --> 01:37:03,000 THAT HAVE OPERATED FOR 200 YEARS 2546 01:37:03,000 --> 01:37:05,000 TO PREVENT THE KIND OF ABUSES 2547 01:37:05,000 --> 01:37:06,000 THAT MY FRIEND FEARS GOING 2548 01:37:06,000 --> 01:37:09,000 RWD AS A RESULT OF THIS ONCE 2549 01:37:09,000 --> 01:37:10,000 IN HISTORY PROSECUTION. 2550 01:37:10,000 --> 01:37:15,000 >> ON THE QUESTION OF WHETHER A 2551 01:37:15,000 --> 01:37:16,000 PRESIDENT HAS THE AUTHORITY TO 2552 01:37:16,000 --> 01:37:18,000 PARDON HIMSELF, WHICH CAME UP 2553 01:37:18,000 --> 01:37:20,000 EARLIER ARGUMEN WT IS 2554 01:37:20,000 --> 01:37:21,000 THE ANSWER TO THAT QUESTION? 2555 01:37:21,000 --> 01:37:23,000 >> I 'T BELIEVE THE 2556 01:37:23,000 --> 01:37:24,000 DEPARTMENT OF JUSTICE HAS TAKEN 2557 01:37:24,000 --> 01:37:25,000 A POSITION. 2558 01:37:25,000 --> 01:37:28,000 THE ONLYUTHORITY IS A MEMBER 2559 01:37:28,000 --> 01:37:30,000 OF THE OFFICE OF LEGAL COUNSEL 2560 01:37:30,000 --> 01:37:31,000 WRE THAT THERE IS NO SELF 2561 01:37:31,000 --> 01:37:33,000 PARDON AUTHORITY. 2562 01:37:33,000 --> 01:37:34,000 THE DEPARTMENT H N ADDRESSED 2563 01:37:34,000 --> 01:37:36,000 IT FURTHER AND THIS COURT HAD 2564 01:37:36,000 --> 01:37:37,000 NOT ADDRESSEITITHER. 2565 01:37:37,000 --> 01:37:39,000 >> WHEN YOU ADDRESS THAT 2566 01:37:39,000 --> 01:37:42,000 QUESTION BEFORE, ARE YOU 2567 01:37:42,000 --> 01:37:43,000 SPEANGN YOUR CAPACITY SOLELY 2568 01:37:43,000 --> 01:37:45,000 AS A MEMBER OF THE SPECIAL 2569 01:37:45,000 --> 01:37:47,000 UNL'S TEAM OR ARE YOU 2570 01:37:47,000 --> 01:37:49,000 SPEAKINGN HALF OF THE 2571 01:37:49,000 --> 01:37:54,000 JUSTICE DEPARTMENT, WHICH HAS 2572 01:37:54,000 --> 01:37:55,000 SPECIAL INSTITUTIONAL REONSIBILITIES? 2573 01:37:55,000 --> 01:37:57,000 >> I'M SPEAKING ON BEHALF OF THE 2574 01:37:57,000 --> 01:37:59,000 JUSTICE DEPARTMENT REPRENNG 2575 01:37:59,000 --> 01:38:00,000 THE UNITED STATES. 2576 01:38:00,000 --> 01:38:02,000 >> DON'YOTHINK WE NEED TO 2577 01:38:02,000 --> 01:38:04,000 KNOW THE ANSWER AT LEAST TWO THE 2578 01:38:04,000 --> 01:38:06,000 JUSTICE DEPARTMENT'S POSITION ON 2579 01:38:06,000 --> 01:38:09,000 THATSS IN ORDER TO DECIDE 2580 01:38:09,000 --> 01:38:11,000 THIS CASE? 2581 01:38:11,000 --> 01:38:12,000 CAUSE IF A PRESIDENT HAS THE 2582 01:38:12,000 --> 01:38:14,000 AUTHORITY TO PARDON HIMSELF 2583 01:38:14,000 --> 01:38:17,000 BEFORE LEAVING OFFICE AND THE 2584 01:38:17,000 --> 01:38:20,000 D.C. CIRCUIT JUDGE RIGHT THAT 2585 01:38:20,000 --> 01:38:22,000 THERE IS NO IMMUNITY FROM 2586 01:38:22,000 --> 01:38:24,000 PROSECUTION, WON'T THE 2587 01:38:24,000 --> 01:38:25,000 PREDICTABLE RESULT BE THA 2588 01:38:25,000 --> 01:38:28,000 PRESIDENTS IN THE LAST COUPLE 2589 01:38:28,000 --> 01:38:29,000 DAYS OF OFFICE WILL PARDON 2590 01:38:29,000 --> 01:38:32,000 THEMSELVES FROM ANYTHING THEY MIGHT HAVE BEEN CONCEIVABLY 2591 01:38:32,000 --> 01:38:33,000 CHARGED WITH COMMITTING? 2592 01:38:33,000 --> 01:38:35,000 >> I REALLY DOUBTH, IT 2593 01:38:35,000 --> 01:38:38,000 PRESUPPOSES A REGIME WE HAVE 2594 01:38:38,000 --> 01:38:40,000 NEVER CEPT FOR PRESIDENT 2595 01:38:40,000 --> 01:38:41,000 NIXON AND AS ALLEGED IN THE 2596 01:38:41,000 --> 01:38:43,000 INDICTMENT HERE. 2597 01:38:43,000 --> 01:38:44,000 PRESIDENTS WHO ARE CONSCIOUS OF 2598 01:38:44,000 --> 01:38:46,000 HAVING ENGAG I WRONGDOING AND 2599 01:38:46,000 --> 01:38:50,000 SEEKING TO SHIELD THEMSELVES. 2600 01:38:50,000 --> 01:38:51,000 THE POLITICAL CONSEQUENCES OF A 2601 01:38:51,000 --> 01:38:52,000 PRESIDENT WHO ASSERTED RIT 2602 01:38:52,000 --> 01:38:53,000 OF SELF PARDON THAT HAS NEVER 2603 01:38:53,000 --> 01:38:56,000 BE RECOGZETHAT SEEMS TO 2604 01:38:56,000 --> 01:38:58,000 CONTRADICT A BEDRO PNCIPLE OF OUR L TT NO PERSIANS 2605 01:38:58,000 --> 01:38:59,000 SHALL BE THE JUDGE IN THEIR OWN 2606 01:38:59,000 --> 01:39:02,000 CASE, THOSE ARE ADEQUATE 2607 01:39:02,000 --> 01:39:03,000 DETERRENTS SO THAT THIS KIND OF 2608 01:39:03,000 --> 01:39:05,000 DYSTOPIAN REGIME IS NOT GOINGO 2609 01:39:05,000 --> 01:39:06,000 EVOLVE. 2610 01:39:06,000 --> 01:39:08,000 >> LET ME END WITH JUST 2611 01:39:08,000 --> 01:39:11,000 QUESTION ABOUT -- WHATS 2612 01:39:11,000 --> 01:39:16,000 REQUIRED FOR T FUNCTIONING OF 2613 01:39:16,000 --> 01:39:19,000 A STABLE DEMOCRATICOCIETY? 2614 01:39:19,000 --> 01:39:20,000 WHICH IS SOMETHING THAT WE ALL 2615 01:39:20,000 --> 01:39:23,000 WANT. I'M SURE YOU WOULD AGREWI ME 2616 01:39:23,000 --> 01:39:27,000 THAT A STABLE DEMOCRATIC SOCIETY 2617 01:39:27,000 --> 01:39:28,000 REQUIRES TT CANDIDATE WHO 2618 01:39:28,000 --> 01:39:31,000 LOSES AN ELECTION, EVEN A CLOSE 2619 01:39:31,000 --> 01:39:34,000 ONE, EVEN A HOTLY CONTESTEDNE, 2620 01:39:34,000 --> 01:39:36,000 LEAVE OFFICE PEACEFULLY, IF 2621 01:39:36,000 --> 01:39:37,000 THAT CANDIDATE IS THE INCUMBENT. 2622 01:39:37,000 --> 01:39:38,000 >> OF COURSE. 2623 01:39:38,000 --> 01:39:43,000 >> ALL RIGHT. 2624 01:39:43,000 --> 01:39:47,000 IF AN INCUMBENT WHO LOSES AER 2625 01:39:47,000 --> 01:39:49,000 CLOSE, HOTLY CONTESTED ELECTION 2626 01:39:49,000 --> 01:39:53,000 KNOWS THAT A REAL POSSIBILITY 2627 01:39:53,000 --> 01:39:56,000 AFTER LEAVING OFFICE IS NOT THAT 2628 01:39:56,000 --> 01:39:57,000 THE PRESIDENT IS GOING TO BE 2629 01:39:57,000 --> 01:39:59,000 ABLE TO GO OFFNTA PEACEFUL 2630 01:39:59,000 --> 01:40:01,000 RETIREMENT, BUT THAT E 2631 01:40:01,000 --> 01:40:05,000 PRESIDENT MAY BE CRIMINALLY PROSECUTED BY A BITR LITICAL 2632 01:40:05,000 --> 01:40:09,000 OPPONENT, WILL THAT NOT LEAD US 2633 01:40:09,000 --> 01:40:14,000 INTO A CYCLE THAT DESTABILIZE 2634 01:40:14,000 --> 01:40:15,000 THE FUNCTIONING OF OUR COUNTRY 2635 01:40:15,000 --> 01:40:16,000 AS A DEMOCRACY? 2636 01:40:16,000 --> 01:40:18,000 AND WE CAN LOOKROD THE WORLD 2637 01:40:18,000 --> 01:40:19,000 AND FIND COUNTRIES WHERE WE HAVE 2638 01:40:19,000 --> 01:40:21,000 SEEN THIS PROCESS WHERE THE 2639 01:40:21,000 --> 01:40:22,000 LOSER HROWN IN JAIL. 2640 01:40:22,000 --> 01:40:25,000 >> I THINK IT IS EXACTLY THE 2641 01:40:25,000 --> 01:40:28,000 OPPOSITE, JUSTICE ATO. 2642 01:40:28,000 --> 01:40:30,000 THERE ARE LAWFUL MECHANISMS TO 2643 01:40:30,000 --> 01:40:31,000 CONTEST THE RESUS AN 2644 01:40:31,000 --> 01:40:32,000 ELECTION. 2645 01:40:32,000 --> 01:40:35,000 AND OUTSIDE THE RECORD, BUT I 2646 01:40:35,000 --> 01:40:38,000 THINK A PUIC KWLGE, 2647 01:40:38,000 --> 01:40:42,000 PETITIONER AND HIS AIES FILED 2648 01:40:42,000 --> 01:40:43,000 DOZENS OF ELECTORAL CHALLENGES 2649 01:40:43,000 --> 01:40:45,000 AND IN MY UNDERSTANDING HAS LOST 2650 01:40:45,000 --> 01:40:49,000 ALL BUT ONE THAT WAS NOT OUTCOME 2651 01:40:49,000 --> 01:40:52,000 TEINATIVE IN ANY RESPECT. 2652 01:40:52,000 --> 01:40:55,000 THERE WERE JGES THAT SAID IN 2653 01:40:55,000 --> 01:40:57,000 ORR SUSTAIN SUBSTANTIAL CLAIMS OF FRAUD THAT WOULD 2654 01:40:57,000 --> 01:41:00,000 OVERTURN AN ELECTION RESULT THAT 2655 01:41:00,000 --> 01:41:01,000 IS CERTIFIED BY A STATE, YOU 2656 01:41:01,000 --> 01:41:03,000 NEED EVIDENCE, YOU NEED PROOF, 2657 01:41:03,000 --> 01:41:04,000 AND NONE OFHO THINGS WERE 2658 01:41:04,000 --> 01:41:06,000 MANIFESTED. 2659 01:41:06,000 --> 01:41:07,000 THERE AAPPROPRIATE WAY TO 2660 01:41:07,000 --> 01:41:08,000 CHALLENGE THINGS THROUGH THE 2661 01:41:08,000 --> 01:41:11,000 UR WITH EDEE, IF YOU 2662 01:41:11,000 --> 01:41:12,000 LOSE, YOACPT THE RESULTS, 2663 01:41:12,000 --> 01:41:15,000 THAT HAS BEEN THE NATION'S 2664 01:41:15,000 --> 01:41:16,000 EXPERIENCE IN THE COURT IS WELL FAMILIAR WITH THAT. 2665 01:41:16,000 --> 01:41:17,000 >> THANK YOU. 2666 01:41:17,000 --> 01:41:19,000 . >> JUSTICE SOTOMAYOR. 2667 01:41:19,000 --> 01:41:23,000 >> A STABLE DEMOCRATIC SOCIETY 2668 01:41:23,000 --> 01:41:24,000 NEEDS THE GOOD FAITH OF ITS 2669 01:41:24,000 --> 01:41:25,000 PUBLIC OFFICLS CORRECT? 2670 01:41:25,000 --> 01:41:26,000 >> ABSOLUTEL 2671 01:41:26,000 --> 01:41:29,000 >> THAT GOOD FAITH ASSUM TT 2672 01:41:29,000 --> 01:41:30,000 THEY WILL FOLLOW THE LAW. 2673 01:41:30,000 --> 01:41:31,000 >> CORRECT. 2674 01:41:31,000 --> 01:41:36,000 >> PUTTING THATSIDE, THERE IS 2675 01:41:37,000 --> 01:41:39,000 FAILSAFE SYSTEM OF GOVERNMENT. 2676 01:41:39,000 --> 01:41:42,000 MEANING, WE HAVE A JUDICIAL 2677 01:41:42,000 --> 01:41:45,000 SYSTEM THAT HAS LAYERS AND 2678 01:41:45,000 --> 01:41:49,000 LAYERS AND LAYERS OF PROTECTN 2679 01:41:49,000 --> 01:41:52,000 IN THE HOPES THAT THE IOCT 2680 01:41:52,000 --> 01:41:54,000 WILL GO FREE. 2681 01:41:54,000 --> 01:41:58,000 WE FAIL ROUTINELY. 2682 01:41:58,000 --> 01:41:59,000 T WE SUCCEED MORE OFTEN TN 2683 01:41:59,000 --> 01:42:02,000 NOT. 2684 01:42:02,000 --> 01:42:03,000 IN THE VAST MAJORITY OF CASES, 2685 01:42:03,000 --> 01:42:06,000 THE INNOCENT DO GO FREE. 2686 01:42:06,000 --> 01:42:10,000 SOMETIMES THEY DON' AND WE HAVE 2687 01:42:10,000 --> 01:42:11,000 SOME POSTCONVICTION REMEDIES FOR 2688 01:42:11,000 --> 01:42:12,000 THAT 2689 01:42:12,000 --> 01:42:14,000 BUT WE STILL FAIL. 2690 01:42:14,000 --> 01:42:15,000 HE EXECUTED INNOCENT 2691 01:42:15,000 --> 01:42:16,000 PEOPLE. 2692 01:42:16,000 --> 01:42:21,000 HAVING SAID THAT, JUSTICE ALITO 2693 01:42:23,000 --> 01:42:25,000 WENT THROUGH STEP-BY-STEP ALL OF THE MECHANISMS THATOU 2694 01:42:25,000 --> 01:42:28,000 POTENTIALLY FAIL. 2695 01:42:28,000 --> 01:42:31,000 IN THE END, IF IT FAILS 2696 01:42:31,000 --> 01:42:33,000 COMPLETE I IS BECAUSE WE HAVE 2697 01:42:33,000 --> 01:42:35,000 DESTROYED OUR DEMOCRACY ON OUR 2698 01:42:35,000 --> 01:42:36,000 OWN, IS IT? 2699 01:42:36,000 --> 01:42:39,000 >> IT IS AND I THINK THERE ARE 2700 01:42:39,000 --> 01:42:44,000 ADDITIONAL CHECKS IN THE SYSTEM. 2701 01:42:46,000 --> 01:42:48,000 A SEPARATED POWER SYSTEM WAS 2702 01:42:48,000 --> 01:42:50,000 DESIGNED TO LIMIT ABUSES. 2703 01:42:50,000 --> 01:42:53,000 ONE OF THE WAYS IN WHICH ABU 2704 01:42:53,000 --> 01:42:55,000 ARE LIMITED IS ACCOUNTABILITY 2705 01:42:55,000 --> 01:42:56,000 WIIN THE CRIMINAL LAW, BUT THE 2706 01:42:56,000 --> 01:42:58,000 ULTIMATE CHECK IS THE GOODWILL 2707 01:42:58,000 --> 01:43:01,000 AN FAITH IN DEMOCRACY AND 2708 01:43:01,000 --> 01:43:03,000 CRIMES THAT ARE ALLEGED IN THIS 2709 01:43:03,000 --> 01:43:05,000 CASE THAT ARE THE ANTITHESIS OF 2710 01:43:05,000 --> 01:43:06,000 DEMOCRACY -- 2711 01:43:06,000 --> 01:43:11,000 >> AN ENCOURAGEMENT TO BELIEVE 2712 01:43:13,000 --> 01:43:15,000 WORDS TH HE BEEN PUT INTO SUSPICION HERE, THAT NO MAN IS 2713 01:43:15,000 --> 01:43:18,000 ABOVE THE LAW, EITHER IN HIS 2714 01:43:18,000 --> 01:43:19,000 OFFICIAL OR PRIVATE ACTS. 2715 01:43:19,000 --> 01:43:21,000 >> I THINK THAT IS AN ASSUMPTION 2716 01:43:21,000 --> 01:43:22,000 OF THE CONSTITUTION. 2717 01:43:22,000 --> 01:43:24,000 >> JUSTICE KAGAN? 2718 01:43:24,000 --> 01:43:29,000 >> I WANT TO GO THROUGH YOUR 2719 01:43:29,000 --> 01:43:30,000 FRAMEWORK AND KEURE I 2720 01:43:30,000 --> 01:43:32,000 UNDERSTAND IT. 2721 01:43:32,000 --> 01:43:34,000 FIRST, OTHSMALL CATEGORY OF 2722 01:43:34,000 --> 01:43:36,000 THINGS THAT Y S HAVE 2723 01:43:36,000 --> 01:43:38,000 ABSOLUTE PROTECTION, THAT THEY 2724 01:43:38,000 --> 01:43:39,000 ARE CORE EXECUTIVE FUNCTIONS. 2725 01:43:39,000 --> 01:43:40,000 WHAT ARE THOSE SMALL CATORS? 2726 01:43:40,000 --> 01:43:43,000 >> PARDON POWER. 2727 01:43:43,000 --> 01:43:44,000 VITO. 2728 01:43:44,000 --> 01:43:47,000 >> VITO. 2729 01:43:47,000 --> 01:43:48,000 FOREIGN RECOGNITION. 2730 01:43:48,000 --> 01:43:51,000 APPOINTMENTS. 2731 01:43:51,000 --> 01:43:52,000 CONGRESS CANNOT SAYOUANNOT 2732 01:43:52,000 --> 01:43:53,000 APPOINT A FEDERAL JUDGE WHO 2733 01:43:53,000 --> 01:43:56,000 HASN'T RECEIVED AERTAIN 2734 01:43:56,000 --> 01:43:57,000 DIPLOMA OR HASN'T ACHIED 2735 01:43:57,000 --> 01:43:59,000 CERTAIN AGE. 2736 01:43:59,000 --> 01:44:00,000 THERE ARE A FEW OTHEPORS. 2737 01:44:00,000 --> 01:44:02,000 >> IS COMMANDER-IN-CHIEF? 2738 01:44:02,000 --> 01:44:05,000 >> COMMANDER-IN-CHIEF IS ON THE 2739 01:44:05,000 --> 01:44:07,000 LIST, T I WANT TO ADD TO MY 2740 01:44:07,000 --> 01:44:09,000 ANSWERNTHAT CONGRESS HAS 2741 01:44:09,000 --> 01:44:12,000 SUBSTANTIAL AUTHORITY IN THE 2742 01:44:12,000 --> 01:44:13,000 NATIONAL SECURITY ROUND. 2743 01:44:13,000 --> 01:44:15,000 ITLARES WAR, RAISES THE 2744 01:44:15,000 --> 01:44:16,000 ARMY. 2745 01:44:16,000 --> 01:44:21,000 >> TT MAY BE VIEWED IN THE SET 2746 01:44:23,000 --> 01:44:26,000 OF FUNCTIONS THAT NOBODY HAS IT 2747 01:44:26,000 --> 01:44:29,000 OVER. 2748 01:44:29,000 --> 01:44:34,000 >> NOW IN THE NEXTATORY 2749 01:44:39,000 --> 01:44:41,000 WHERE WE HAVE LEFT THE CORE SET BEHIND AND WE ARE THE WORLD 2750 01:44:41,000 --> 01:44:45,000 OF OICL ACTIONS WHERE YOU 2751 01:44:45,000 --> 01:44:46,000 SAY THERE ARE VARIOUS STATUTORY 2752 01:44:46,000 --> 01:44:48,000 CONSTRTI RULES THAT MIGH 2753 01:44:48,000 --> 01:44:50,000 COME INTO PLAY. 2754 01:44:50,000 --> 01:44:51,000 COULD YOU VEHARACTERIZED 2755 01:44:51,000 --> 01:44:54,000 THOSE AS SOMETHING DFENT 2756 01:44:54,000 --> 01:44:55,000 FROM SAYING THE STATUTE DOESN'T 2757 01:44:55,000 --> 01:44:56,000 SAY THE PRESIDENT THEREFORE IT 2758 01:44:56,000 --> 01:44:57,000 DOESN'T APPLY TO THE PSIDENT? 2759 01:44:57,000 --> 01:44:58,000 >> THAT'S RIGHT. 2760 01:44:58,000 --> 01:45:01,000 >> I WANTED TO GIVE YOU 2761 01:45:01,000 --> 01:45:02,000 OPPORTUNITY TO SAY HOW THAT 2762 01:45:02,000 --> 01:45:04,000 WOULD LOOK, HOW THAT ANYS 2763 01:45:04,000 --> 01:45:06,000 WOULD LOOK IN A GIVEN CASE AND 2764 01:45:06,000 --> 01:45:08,000 IN THE COURSE OF RESPONDING TO 2765 01:45:08,000 --> 01:45:10,000 THAT, I'M SORT OF TNKG OF 2766 01:45:10,000 --> 01:45:12,000 SOMETHING LIKE THE OLC OPINION, 2767 01:45:12,000 --> 01:45:15,000 WHICH SAYS BRIBERY, THE 2768 01:45:15,000 --> 01:45:17,000 PRESIDENT CAN BE TRIED AND 2769 01:45:17,000 --> 01:45:22,000 CONVICTED OF BRIBERY WHY IS THAT 2770 01:45:25,000 --> 01:45:29,000 TRUE >> THAT IS TRUE BECAUSE THERE IS 2771 01:45:29,000 --> 01:45:32,000 NO SERIOUS CONSTITUTIONAL WESTON 2772 01:45:32,000 --> 01:45:35,000 THAT THE PRESIDENT NEEDS TO ENGAGE IN BRIBERY TO CARRY OUT 2773 01:45:35,000 --> 01:45:38,000 CONSTITUTIONAL FNS. 2774 01:45:38,000 --> 01:45:41,000 BRIBERY IS A NEWMAN AIDED SO IT 2775 01:45:41,000 --> 01:45:42,000 FALLS OUTSIDE OF ANYTHING THAT 2776 01:45:42,000 --> 01:45:45,000 COULD BE VIEWED AS INHERENT IN 2777 01:45:45,000 --> 01:45:46,000 THEEEOF ARTICLE TWO TO 2778 01:45:46,000 --> 01:45:47,000 FUNCTION. 2779 01:45:47,000 --> 01:45:50,000 >> DO YOUHINK THE PREMISE OF 2780 01:45:50,000 --> 01:45:51,000 THAT OLC OPINION WAS THAT 2781 01:45:51,000 --> 01:45:53,000 BRIBERY WAS SIMPLY NOT OFFICIAL 2782 01:45:53,000 --> 01:45:54,000 OR IS THE PREMIS THAT THE 2783 01:45:54,000 --> 01:45:58,000 BRIBERY WAS OFFICIAL AN STILL 2784 01:45:58,000 --> 01:45:59,000 THE PRESIDENT COULBE PROSECUTED FOR? 2785 01:45:59,000 --> 01:46:02,000 >> I THINK BRIBERY IS A KIND OF 2786 01:46:02,000 --> 01:46:05,000 HYID THAT ILLUSTRATES THE 2787 01:46:05,000 --> 01:46:09,000 ABUSE OF PUBLIC OFFICE FOR PRAT GAIN THAT WE THINK OUR 2788 01:46:09,000 --> 01:46:13,000 PARADIGM ATTIC OF THINGS THAT 2789 01:46:13,000 --> 01:46:16,000 SHOULD BE NOHE TO BE IMMUNE. 2790 01:46:16,000 --> 01:46:17,000 THE PUBLIC OFFICIAL CANNOT 2791 01:46:17,000 --> 01:46:19,000 TRT THE BRIDE WITHOUT THE 2792 01:46:19,000 --> 01:46:22,000 OFCI POWER TO OFFER AS QD 2793 01:46:22,000 --> 01:46:26,000 OR PRO. 2794 01:46:26,000 --> 01:46:28,000 I GUESS THE PRO ACTUALLY. 2795 01:46:28,000 --> 01:46:30,000 IT IS A CRIME THAT C OY BE 2796 01:46:30,000 --> 01:46:31,000 COMMITTED BY PUBLIC OFFICIALS 2797 01:46:31,000 --> 01:46:33,000 WHO MISUSE THEIR POWER. 2798 01:46:33,000 --> 01:46:35,000 IT IS ONE OF THE THINGS THAT WAS 2799 01:46:35,000 --> 01:46:39,000 MOST MISTRUSTED. MANY OF E ACTS CHAEDN THIS 2800 01:46:39,000 --> 01:46:40,000 INDICTMENT OR THAT WOULD VIOLATE 2801 01:46:40,000 --> 01:46:43,000 CRIMINAL LAW INVOLVE THE MISUSE 2802 01:46:43,000 --> 01:46:44,000 OF OFFICL WER FOR PRIVATE GAIN. 2803 01:46:44,000 --> 01:46:47,000 >>O IF YOU WERE TO SAY WHAT 2804 01:46:47,000 --> 01:46:49,000 THE LINE IS IN THIS CATEGORY, 2805 01:46:49,000 --> 01:46:51,000 LI WHEN IT IS THAT THE STATUTE 2806 01:46:51,000 --> 01:46:53,000 SHOULD BE UNDERSTOOD AS 2807 01:46:53,000 --> 01:46:54,000 PRECLUDING PRESIDENTIAL 2808 01:46:54,000 --> 01:46:56,000 PROSECUTION AND WHEIT IS THAT 2809 01:46:56,000 --> 01:46:57,000 THE STATUTE SHOULD BE UNDERSTOOD 2810 01:46:57,000 --> 01:46:59,000 AS ALLOWING IT, WHAT GENERAL 2811 01:46:59,000 --> 01:47:01,000 PRINPL SHOULD GUIDE? 2812 01:47:01,000 --> 01:47:03,000 T GENERAL PRINCIPLES I 2813 01:47:03,000 --> 01:47:05,000 THINK KIND OF EMERGE FROM 2814 01:47:05,000 --> 01:47:06,000 OKG AT WHAT THE OFFICE OF 2815 01:47:06,000 --> 01:47:09,000 LEGAL COUNSEL HAS DONE. 2816 01:47:09,000 --> 01:47:10,000 FOR EXAMPLE, WITH RESPECT TO A 2817 01:47:10,000 --> 01:47:13,000 FEDEL STATUTE THAT PROHIBITED 2818 01:47:13,000 --> 01:47:18,000 APPOINTMENTSO CORDS- COURTS, 2819 01:47:19,000 --> 01:47:21,000 THE OFFICEF GALOUNSEL SAID 2820 01:47:21,000 --> 01:47:25,000 THIS INFRINGES ON THE POWER TO 2821 01:47:25,000 --> 01:47:27,000 POINT FEDERAL JUDGES. 2822 01:47:27,000 --> 01:47:28,000 IT CANNOT BE PRESUMED TT 2823 01:47:28,000 --> 01:47:30,000 CONGRESS INTENDED TO DO THAT 2824 01:47:30,000 --> 01:47:31,000 BECAUSE IT WOD ISE A SERIOUS 2825 01:47:31,000 --> 01:47:34,000 CONSTITUTIONAL QUESTION. 2826 01:47:34,000 --> 01:47:36,000 THRE ARE CATEGORIES OF 2827 01:47:36,000 --> 01:47:39,000 ATES WHERE THE PRESIDENT IS IN. 2828 01:47:39,000 --> 01:47:40,000 LIKE THE GRASSROOTS LOBBYING 2829 01:47:40,000 --> 01:47:42,000 STATUTE. 2830 01:47:42,000 --> 01:47:44,000 THE OLC WROTE AN OPINION ABOUT 2831 01:47:44,000 --> 01:47:46,000 THAT AND IT IDOR THE 2832 01:47:46,000 --> 01:47:49,000 PRESIDENT OR OTHER PUBLI OFFICIALS TO GO OUT IO THE 2833 01:47:49,000 --> 01:47:50,000 WORLD TO PROMOTE TIR PROGRAMS, 2834 01:47:50,000 --> 01:47:51,000 ATAN'T BE WHAT CONGRESS 2835 01:47:51,000 --> 01:47:53,000 INTENDED TO PROHIBIT. 2836 01:47:53,000 --> 01:47:56,000 WHAT IT DID INTEND TO PROHIBIT 2837 01:47:56,000 --> 01:47:58,000 IS USING FEDERAL FUNDS TO GIN UP 2838 01:47:58,000 --> 01:47:59,000 AIFICIAL GRASSROOTS 2839 01:47:59,000 --> 01:48:00,000 CAMPAIGN THAT GAVE THE 2840 01:48:00,000 --> 01:48:01,000 APPEARANCE OF EMERGI FM THE 2841 01:48:01,000 --> 01:48:02,000 PEOPLE THAT IT WAS REALLY TOP 2842 01:48:02,000 --> 01:48:05,000 DOWN. 2843 01:48:05,000 --> 01:48:06,000 THE OLC SAID THE PRESIDENT AND 2844 01:48:06,000 --> 01:48:08,000 OFFICIALS WHO CARRY OUT THE 2845 01:48:08,000 --> 01:48:11,000 PRESIDENT'SANDATES ARE SUBJECT 2846 01:48:11,000 --> 01:48:13,000 TO THAT STATUTE SO THAT IS A 2847 01:48:13,000 --> 01:48:14,000 MORE NUANCED ONE. 2848 01:48:14,000 --> 01:48:15,000 AND THOSE ARE THE EXPL THAT 2849 01:48:15,000 --> 01:48:17,000 I WILL GIVE YOU. 2850 01:48:17,000 --> 01:48:19,000 THE THIRD ISTATUTE THAT 2851 01:48:19,000 --> 01:48:20,000 WOULD PERMIT PROSECUTION FOR 2852 01:48:20,000 --> 01:48:22,000 CONTEMPT OF CONGRES 2853 01:48:22,000 --> 01:48:25,000 THELCONCLUDED THAT A GOOD 2854 01:48:25,000 --> 01:48:26,000 FAITH SEION OF EXECUTIVE 2855 01:48:26,000 --> 01:48:28,000 PRIVILEGES A REASON FOR NOT 2856 01:48:28,000 --> 01:48:30,000 OVIDING INFORMATION TO 2857 01:48:30,000 --> 01:48:32,000 CONGRESS WOULD PRECLUDE 2858 01:48:32,000 --> 01:48:34,000 PROSECUTION BECAUSE CONGRESS CANN B DEEMED TOAVALTERED 2859 01:48:34,000 --> 01:48:37,000 THE SEPARATION OF POWERS IN SUC 2860 01:48:37,000 --> 01:48:38,000 A MANNER. 2861 01:48:38,000 --> 01:48:41,000 I THINK OLCOULD HAVE PROBABLY 2862 01:48:41,000 --> 01:48:42,000 GONE ON TO SAY OF CONGRESS TRIED 2863 01:48:42,000 --> 01:48:44,000 TO DO IT, IT WOULD BE DEEMED 2864 01:48:44,000 --> 01:48:45,000 UNCONSTITUTIONAL. 2865 01:48:45,000 --> 01:48:48,000 NOT SPECIFICALLY NAME THEAT DID 2866 01:48:48,000 --> 01:48:49,000 PRESIDENT. 2867 01:48:49,000 --> 01:48:51,000 THERE ARE ONLY TWO THAT DO THAT. 2868 01:48:51,000 --> 01:48:53,000 SO THE ENTIRE CORPUS OF FEDERAL 2869 01:48:53,000 --> 01:48:56,000 CRIMINAL LAW INCLUDING BRIBERY 2870 01:48:56,000 --> 01:48:58,000 OFFENSES, SEDITION, MURDER, 2871 01:48:58,000 --> 01:49:00,000 WOULD ALL O LIMITS IF IT 2872 01:49:00,000 --> 01:49:03,000 WERE TAKEN TO THE EXTENT THAT 2873 01:49:03,000 --> 01:49:04,000 SOME OF THE QUESTIONS HAVE 2874 01:49:04,000 --> 01:49:06,000 SUGGESTED. 2875 01:49:06,000 --> 01:49:09,000 AND IT DOES RAISE A SERIOUS 2876 01:49:09,000 --> 01:49:11,000 CONSTITUTIONAL QUESTION. 2877 01:49:11,000 --> 01:49:12,000 IF SO, TO WHAT EXTENT CAN BE 2878 01:49:12,000 --> 01:49:14,000 CARVED OUT INDIVIDLL 2879 01:49:14,000 --> 01:49:17,000 AND THERE MAY BE SOME INSNC 2880 01:49:17,000 --> 01:49:18,000 WHERE THE STATUTES HERE COULD BE 2881 01:49:18,000 --> 01:49:20,000 CARVED O AND A PARTICULAR ACT 2882 01:49:20,000 --> 01:49:22,000 COULD BE FOUND TO BE PROTECTED. 2883 01:49:22,000 --> 01:49:27,000 OR DOES THE STATUTE ACROSS THE 2884 01:49:27,000 --> 01:49:28,000 BOARD IN SUCH A WIDE RANGE OF 2885 01:49:28,000 --> 01:49:30,000 APPLICATIONS, SOMEWHAT ALOUS 2886 01:49:30,000 --> 01:49:32,000 TO OVERBREADTH ANALYSIS, 2887 01:49:32,000 --> 01:49:34,000 INFRINGE ON THE PRESIDENT'S 2888 01:49:34,000 --> 01:49:36,000 POWEO WE CAN SAY THAT? 2889 01:49:36,000 --> 01:49:40,000 >> THAT SET OF ISSUES SEEM 2890 01:49:40,000 --> 01:49:41,000 POANT AND MAY BE DIFFICULT 2891 01:49:41,000 --> 01:49:43,000 OCCASIONALLY. 2892 01:49:43,000 --> 01:49:45,000 THEY ALSO SE N REALLY BEFORE 2893 01:49:45,000 --> 01:49:46,000 US IN THE WAY JUSCEACKSON 2894 01:49:46,000 --> 01:49:49,000 SUGGESTED EARLIER. 2895 01:49:49,000 --> 01:49:51,000 DO Y TNK THEY ARE BEFORE US 2896 01:49:51,000 --> 01:49:52,000 AND WE SHOULD CLEAR IT UP, HERE 2897 01:49:52,000 --> 01:49:54,000 IT IS? 2898 01:49:54,000 --> 01:49:56,000 WHAT ELSEOULD WE DO? 2899 01:49:56,000 --> 01:49:58,000 HOW COULD WE DO -- DEAL WITH 2900 01:49:58,000 --> 01:50:03,000 THIS? 2901 01:50:03,000 --> 01:50:04,000 WHETHER OR NOT THERE IS THIS 2902 01:50:04,000 --> 01:50:08,000 ABSOLUTE IMMUNITY. 2903 01:50:08,000 --> 01:50:11,000 >> I THINK THE COURT HAS THE 2904 01:50:11,000 --> 01:50:14,000 DISCRETION TO REACTH ISSUE. 2905 01:50:14,000 --> 01:50:17,000 IT WAS NOT RAISED IN THE DISTRICT COURT AND IT WAS NOT 2906 01:50:17,000 --> 01:50:19,000 RAISED IN THE COURT AEALS. 2907 01:50:19,000 --> 01:50:21,000 THE ANALYSIS WLD USE TO GET 2908 01:50:21,000 --> 01:50:23,000 THERE IS A FUONF A COUPLE OF 2909 01:50:23,000 --> 01:50:24,000 PRINCIPLES. 2910 01:50:24,000 --> 01:50:27,000 THE COURT HAS OFTEN RESOLVED 2911 01:50:27,000 --> 01:50:29,000 THRESHOLD QUESTIONST ARE A 2912 01:50:29,000 --> 01:50:30,000 PREREQUISITE TO AN INTELLINT 2913 01:50:30,000 --> 01:50:31,000 RESOLUTION OF THE QUESTION 2914 01:50:31,000 --> 01:50:32,000 PRESENTED. 2915 01:50:32,000 --> 01:50:33,000 IN A CASE LIKE UNID ATES 2916 01:50:33,000 --> 01:50:35,000 VERSUS GRABS THE COURT REACHED 2917 01:50:35,000 --> 01:50:39,000 OUT TO DECIDE WHETH 2918 01:50:39,000 --> 01:50:40,000 ANTICIPATORY WARRANTS ARE VALID 2919 01:50:40,000 --> 01:50:41,000 UNDER THE FOURTH AMENDMENT 2920 01:50:41,000 --> 01:50:42,000 BEFORE TURNGO THE QUESTION 2921 01:50:42,000 --> 01:50:44,000 OF WHETHER THE TRIGGERING 2922 01:50:44,000 --> 01:50:45,000 CONDITION F AN ANTICIPATORY 2923 01:50:45,000 --> 01:50:46,000 WARRANT HAD TO BE IN THE 2924 01:50:46,000 --> 01:50:47,000 WARRANT. 2925 01:50:47,000 --> 01:50:49,000 THAT IS ONE PRINCIPAL. 2926 01:50:49,000 --> 01:50:51,000 AND THEN A PRECEDENT THAT BEARS 2927 01:50:51,000 --> 01:50:55,000 SOME ANALOGY TO THIS IS VERMONT 2928 01:50:55,000 --> 01:50:57,000 TURAL RESOURCES AGENCY V. 2929 01:50:57,000 --> 01:51:02,000 THE FIRSTION WAS WHETHER A 2930 01:51:02,000 --> 01:51:05,000 STATE AGENCA PERSON WITHIN 2931 01:51:05,000 --> 01:51:08,000 THE MEANING OF THE AND THE 2932 01:51:08,000 --> 01:51:11,000 SECOND QUESTION WAS WHETHER IF 2933 01:51:11,000 --> 01:51:13,000 THE STATE AGENCY WAS 11TH 2934 01:51:13,000 --> 01:51:16,000 AMENDMENT IMMUNITY KICKE IN, 2935 01:51:16,000 --> 01:51:18,000 AND THE COURT WROTE AN ANALY 2936 01:51:18,000 --> 01:51:19,000 OF WHY IT COULD REACH BOTH 2937 01:51:19,000 --> 01:51:21,000 QUESTIONS. 2938 01:51:21,000 --> 01:51:24,000 HING THE PERSON QUESTION DID 2939 01:51:24,000 --> 01:51:26,000 NOT EXPAND JURISDICTION AND IT 2940 01:51:26,000 --> 01:51:28,000 CONSTITUTIONAL AVOIDANCE TO DO 2941 01:51:28,000 --> 01:51:31,000 THAT. THERE ARE CONSIDERATIONS THAT 2942 01:51:31,000 --> 01:51:32,000 CUT AGAINST THI 2943 01:51:32,000 --> 01:51:35,000 FOR OVERALL GOVERNMENTITIES, 2944 01:51:35,000 --> 01:51:37,000 WE ARE NOT WILD ABOUT PARTIES 2945 01:51:37,000 --> 01:51:41,000 WHO RAISE AN IMMUNITY CASE THAT 2946 01:51:41,000 --> 01:51:44,000 CAN BE PRESENTED TO A COURT ON 2947 01:51:44,000 --> 01:51:46,000 APPEAL AND THEN SMUGGLING AND OTHER ISSUES. 2948 01:51:46,000 --> 01:51:49,000 NOT TO HAVE AN EXPANSIVEE THE 2949 01:51:49,000 --> 01:51:51,000 APPROACH TO THAT ISSUE. 2950 01:51:51,000 --> 01:51:53,000 BUT THE FINAL THING THAT D 2951 01:51:53,000 --> 01:51:54,000 SAY ABOUT THIS IS PART OF OUR 2952 01:51:54,000 --> 01:51:58,000 SUBMISSION TO THIS COURT IS THAT 2953 01:51:58,000 --> 01:51:59,000 THE ARTICLE ONE BRANCH AND THE 2954 01:51:59,000 --> 01:52:02,000 ARTICLE TWO BRAHEARE ALIGNED 2955 01:52:02,000 --> 01:52:04,000 IN BELIEVING THAT THIS 2956 01:52:04,000 --> 01:52:05,000 UTION IS AN APPROPRIATE 2957 01:52:05,000 --> 01:52:06,000 WAY TO ENFORCE THE LAW. 2958 01:52:06,000 --> 01:52:09,000 CONGRESS BY MAKING THE LAW, THE 2959 01:52:09,000 --> 01:52:10,000 CURRENT EXECUTIVE BY DECIDING TO 2960 01:52:10,000 --> 01:52:11,000 BRING IT 2961 01:52:11,000 --> 01:52:15,000 IT IS A BUILDING BLOCK OF THAT 2962 01:52:15,000 --> 01:52:16,000 SUBMISSION ITH CONGRESS 2963 01:52:16,000 --> 01:52:17,000 ACTUALLY DID APPLY THESE 2964 01:52:17,000 --> 01:52:18,000 CRIMINAL LAWS TO OFFICIAL 2965 01:52:18,000 --> 01:52:21,000 CONDUCT, THE COURT MAY WISHO 2966 01:52:21,000 --> 01:52:22,000 EXERCISE DISCRETION TO RESOLVE 2967 01:52:22,000 --> 01:52:25,000 THAT ISSUE. >> I HAVE ONE LAST SET OF 2968 01:52:25,000 --> 01:52:26,000 QUESTIONS WHICH HAS TO DO WITH 2969 01:52:26,000 --> 01:52:29,000 THE OFFICIAL UNOFFICIAL LINE 2970 01:52:29,000 --> 01:52:32,000 YOU HEARD MR. SOUR'S RESPOES 2971 01:52:32,000 --> 01:52:35,000 TO JUSTICE BARRETT'S QSTNS 2972 01:52:35,000 --> 01:52:39,000 AND MY QUESTIONS ABOUT WHAT HE THINKS COUNTS AS OFFICIAL HERE'S 2973 01:52:39,000 --> 01:52:41,000 ANWH HE THINKS IS UNOFFICIAL 2974 01:52:41,000 --> 01:52:42,000 HERE. 2975 01:52:42,000 --> 01:52:45,000 I'M WONDERING WHAT YOU TOOK FROM 2976 01:52:45,000 --> 01:52:46,000 S RESPONSES AND ALSO HOW YOU 2977 01:52:46,000 --> 01:52:47,000 WOULD CHARACTERIZE WHAT IS 2978 01:52:47,000 --> 01:52:49,000 OFFICIAL AND WHAT IS NOT 2979 01:52:49,000 --> 01:52:51,000 OFFICIAL IN THIS INDICTMENT. 2980 01:52:51,000 --> 01:52:55,000 SO, I THINK PETITIONER 2981 01:52:55,000 --> 01:52:57,000 CONCEDED THAT THERE ARE ACTS 2982 01:52:57,000 --> 01:52:58,000 THAT ARE NOT OFFICIAL THAT ARE 2983 01:52:58,000 --> 01:53:00,000 ALLEGED IN THE INDICTMENT. 2984 01:53:00,000 --> 01:53:01,000 WE AGREED ON ALL OF THAT. 2985 01:53:01,000 --> 01:53:05,000 EVERYTHING ELSE ABOUT WHAT HE 2986 01:53:05,000 --> 01:53:06,000 SAID AS OFFICIAL AND WT 2987 01:53:06,000 --> 01:53:08,000 NOT. 2988 01:53:08,000 --> 01:53:10,000 ORGANIZING FRAUDULENT SLATES OF 2989 01:53:10,000 --> 01:53:12,000 ECRS, CREATING FALSE 2990 01:53:12,000 --> 01:53:14,000 DOCUMENTATION THAT SAYS I'M AN 2991 01:53:14,000 --> 01:53:16,000 ELECTOR, I HAVE BEENPPNTED 2992 01:53:16,000 --> 01:53:18,000 PROPERLY, I'M GOING TO SEND A 2993 01:53:18,000 --> 01:53:19,000 VOTE TO CONGRESS THAT REFLECTS 2994 01:53:19,000 --> 01:53:22,000 THATIONER WON RATR AN 2995 01:53:22,000 --> 01:53:24,000 THE MOSTOT AND IT WASTUALLY GOT 2996 01:53:24,000 --> 01:53:26,000 ASCERTAINED BY THE GOVERNOR AND 2997 01:53:26,000 --> 01:53:28,000 HIS ELECTORS WERE APPOINTED TO 2998 01:53:28,000 --> 01:53:31,000 ST VOTES, THAT IS NOT OFFICIAL 2999 01:53:31,000 --> 01:53:32,000 CONDUCT. 3000 01:53:32,000 --> 01:53:35,000 THAT IS CAMPAIGN CONDUCT A I 3001 01:53:35,000 --> 01:53:37,000 THINK THAT THE D.C. CIRCUIT 3002 01:53:37,000 --> 01:53:41,000 JUDGE LASTING CASDI DRAW A 3003 01:53:41,000 --> 01:53:42,000 APPROPRIATE DISTINCTION. A FIRST-TERM PRESIDENT RUNNING 3004 01:53:42,000 --> 01:53:45,000 FOREELECTION CAN ACT 3005 01:53:45,000 --> 01:53:47,000 INCACI OF OFFICE SEEKER OR 3006 01:53:47,000 --> 01:53:49,000 OFFICEHOLDER. 3007 01:53:49,000 --> 01:53:52,000 WHEN WORKING WITH PRIVATE 3008 01:53:52,000 --> 01:53:54,000 LAWYERS AND IN PRIVATE-PUBLIC 3009 01:53:54,000 --> 01:53:58,000 RELATIONS ADVISING TO GIN UP 3010 01:53:58,000 --> 01:54:00,000 FRAUDULENT SLATES OFLEIONS, 3011 01:54:00,000 --> 01:54:01,000 THAT IS NOT PART OF A 3012 01:54:01,000 --> 01:54:06,000 PRESIDENT'S JOB. 3013 01:54:06,000 --> 01:54:07,000 >> THERE IS AN ALLEGATION IN THE 3014 01:54:07,000 --> 01:54:08,000 INDICTMENT THAT HAS TO DO WITH 3015 01:54:08,000 --> 01:54:09,000 THE REMOVAL OF A JUSTICE DEPARTMENT OFFICIAL. 3016 01:54:09,000 --> 01:54:10,000 IS THAT CORE PROTECTED CONDUCT? 3017 01:54:10,000 --> 01:54:13,000 >> WE DID NOT THINK THAT IS CORE 3018 01:54:13,000 --> 01:54:17,000 PROTECTED CONDU. 3019 01:54:17,000 --> 01:54:18,000 I DON'T THINK I WOULD CHARACTERIZE THAT EPISODE QUITE 3020 01:54:18,000 --> 01:54:20,000 THAT WAY. WE DO AGRT THE DEPARTMENT 3021 01:54:20,000 --> 01:54:22,000 OF JUSTICE ALLEGATIONS WERE A 3022 01:54:22,000 --> 01:54:23,000 E OF THE PRESIDENT'S OFFICIAL 3023 01:54:23,000 --> 01:54:24,000 POWER. 3024 01:54:24,000 --> 01:54:27,000 IN MANY WAYS, WE THINK THAT 3025 01:54:27,000 --> 01:54:28,000 AGGRAVATES THE NATURE OF THIS 3026 01:54:28,000 --> 01:54:32,000 OFFENSE. 3027 01:54:32,000 --> 01:54:34,000 SEEKING AS AANDATE TO OUST 3028 01:54:34,000 --> 01:54:35,000 THE LAWFUL WINR THE 3029 01:54:35,000 --> 01:54:37,000 ELECTION AND HAVE ONESELF 3030 01:54:37,000 --> 01:54:40,000 CERTIFIED WITH PRIVATE ACTORS IS 3031 01:54:40,000 --> 01:54:41,000 A PRIVATE SCHEME TO ACEVA 3032 01:54:41,000 --> 01:54:46,000 PRIVATE AND READ FOR AN 3033 01:54:46,000 --> 01:54:48,000 INCUMBENT PRESIDENT TO USE HIS 3034 01:54:48,000 --> 01:54:51,000 PRESENAL POWER TO TRY TO 3035 01:54:51,000 --> 01:54:53,000 ENHANCE THE LIKELIHOOD THAT IT 3036 01:54:53,000 --> 01:54:54,000 SUCCEEDS MAKES THE CRIME IN R 3037 01:54:54,000 --> 01:54:56,000 VIEW WORSE. 3038 01:54:56,000 --> 01:54:59,000 IN THE DEPARTMENT OF JUSCE 3039 01:54:59,000 --> 01:55:02,000 EPISODE, THIS OCCURS LATE IN THE 3040 01:55:02,000 --> 01:55:04,000 ELECTION CYCLE AFTER MANY OTHER SCHEMES HAVE FAILED. 3041 01:55:04,000 --> 01:55:09,000 AT THAT POINT, THE PETITIONER IS 3042 01:55:09,000 --> 01:55:13,000 ALGETO HAVE TRIED TO 3043 01:55:13,000 --> 01:55:14,000 PRESSURE THEEPTMENT OF 3044 01:55:14,000 --> 01:55:15,000 JUSTICE TO SEND FALSE LETTERS TO 3045 01:55:15,000 --> 01:55:17,000 THE STATES CLAIMING THERE WERE 3046 01:55:17,000 --> 01:55:19,000 SERIOUS ELECTION REGULARITIES 3047 01:55:19,000 --> 01:55:20,000 AND THEY SHOULD INVEIGE WHO 3048 01:55:20,000 --> 01:55:24,000 THEY CERTIFIED. NONE OF THIS WAS TRUE. 3049 01:55:24,000 --> 01:55:25,000 THE DEPARTMENT OF JUSTICE 3050 01:55:25,000 --> 01:55:26,000 OFFICIALS ALL SAIDHIWAS NOT 3051 01:55:26,000 --> 01:55:27,000 TRUE, WE ARE NOT GOING TO DO 3052 01:55:27,000 --> 01:55:31,000 THAT. ATHAT POINT, PETITIONER IS 3053 01:55:31,000 --> 01:55:32,000 ALLEGED TO THREATEN TO REMOVE 3054 01:55:32,000 --> 01:55:34,000 THE DEPARTMENT OF JUSTICE 3055 01:55:34,000 --> 01:55:37,000 OFFICIALS WHO ARE STANDING BY TH OATH AND REPCEHEM WITH 3056 01:55:37,000 --> 01:55:38,000 ANOTHER PERSON WHO WARRY 3057 01:55:38,000 --> 01:55:39,000 IT OUT. 3058 01:55:39,000 --> 01:55:40,000 WE A NOT SEEKING TO IMPOSE 3059 01:55:40,000 --> 01:55:42,000 CRINAL LIABILITY ON THE 3060 01:55:42,000 --> 01:55:44,000 PRIDENT FOR EXERCISING OR 3061 01:55:44,000 --> 01:55:46,000 TALKING ABOUTXERCISING THE 3062 01:55:46,000 --> 01:55:48,000 APPOINTMT D REMOVAL POWER. 3063 01:55:48,000 --> 01:55:50,000 WHAT WE ARE SEEKING TO IMPO 3064 01:55:50,000 --> 01:55:52,000 CRIMINAL LIABILITY FOR IS A 3065 01:55:52,000 --> 01:55:54,000 CONSPIRACY TO USE FRAUD TO 3066 01:55:54,000 --> 01:55:56,000 SUBVERT THE ELECTIO MEANS 3067 01:55:56,000 --> 01:55:58,000 OF WHICH WAS TO TRY TO GET THE 3068 01:55:58,000 --> 01:55:59,000 JUSTICE DEPARTMENT TO BE COMPCI 3069 01:55:59,000 --> 01:56:03,000 FFENT IF PETITIONER WERE NO 3070 01:56:03,000 --> 01:56:05,000 SUCCESSFULND HE HAD ACTUALLY 3071 01:56:05,000 --> 01:56:06,000 EXERCISED TO THE APPOINTMENT AN 3072 01:56:06,000 --> 01:56:09,000 REMOVAL POWER AND HAD GONE 3073 01:56:09,000 --> 01:56:11,000 THROUGH AND THOSE FRAUDULENT LETTERS WERE SENT. 3074 01:56:11,000 --> 01:56:12,000 IT WOULD HAVE MADE THECHE 3075 01:56:12,000 --> 01:56:13,000 MORE DANGEROUS, BUT IT WOULD NOT 3076 01:56:13,000 --> 01:56:14,000 HAVEHAED THE CRIME. 3077 01:56:14,000 --> 01:56:17,000 >> HOW DO WE THINK ABOUT THINGS 3078 01:56:17,000 --> 01:56:18,000 LIKE CONVERSATIONS WITH THE VICE 3079 01:56:18,000 --> 01:56:19,000 PRESIDENT? 3080 01:56:19,000 --> 01:56:21,000 IF YOU SAY IT THAT WAY, TY 3081 01:56:21,000 --> 01:56:22,000 WOULD FALL UNDER EXECUTIVE 3082 01:56:22,000 --> 01:56:23,000 PRIVILEGE. 3083 01:56:23,000 --> 01:56:26,000 BUT HOW DOES THAT RELATE TO THE 3084 01:56:26,000 --> 01:56:30,000 TION WE ARE ASKING HERE? 3085 01:56:30,000 --> 01:56:31,000 >> THIS IS>> ONE OF THE MOST DIFFICULT QUESTIONS FOR THE 3086 01:56:31,000 --> 01:56:33,000 DEPARTMENT OF JUSTICE AND I WANT 3087 01:56:33,000 --> 01:56:34,000 TO EXPLAIN WHY THAT . 3088 01:56:34,000 --> 01:56:38,000 IF WAR OPERATINGNDER A 3089 01:56:38,000 --> 01:56:41,000 FITZGERALD VERSUS NIXON LENS 3090 01:56:41,000 --> 01:56:42,000 D LOOKING AT THIS THE WAY WE 3091 01:56:42,000 --> 01:56:44,000 LOOK AT THINGS WHEN THERIS PRIVATE LAWSUIT FILED AGAINST 3092 01:56:44,000 --> 01:56:46,000 THE PRESIDENT, WE TAKE A VERY 3093 01:56:46,000 --> 01:56:50,000 BROAD VIEW OF WHAT THE OUTER 3094 01:56:50,000 --> 01:56:51,000 PERIMETER OF OFFICIAL 3095 01:56:51,000 --> 01:56:53,000 PRESIDENTIAL ACTIO IS IN ORDER 3096 01:56:53,000 --> 01:56:55,000 TO BE AS PROTECTIVE OF THE 3097 01:56:55,000 --> 01:56:57,000 PRESIDENT AGAINST PRIVATE 3098 01:56:57,000 --> 01:56:59,000 WSUITS THAT HAS THE COURT 3099 01:56:59,000 --> 01:57:00,000 AINED IN NIXON VERSUS 3100 01:57:00,000 --> 01:57:01,000 FITZGERALD CAN BE VERY 3101 01:57:01,000 --> 01:57:04,000 DELETERIOUS TO T PRESIDENT'S 3102 01:57:04,000 --> 01:57:05,000 CONDUCT OF BUSINESS. 3103 01:57:05,000 --> 01:57:07,000 IF WE WERE PUTTING THIS UNDER A 3104 01:57:07,000 --> 01:57:09,000 FITZGERALD LEN W WOULD HAVE 3105 01:57:09,000 --> 01:57:11,000 TO ANSWEQUESTION, WAS HE 3106 01:57:11,000 --> 01:57:15,000 SEEKER OR WAS HE ACTING IN THE 3107 01:57:15,000 --> 01:57:18,000 CAPACITY AS OFFICEHOLDER? 3108 01:57:18,000 --> 01:57:20,000 IF YOU RUN THRGHHE 3109 01:57:20,000 --> 01:57:21,000 INDICTMENT, YOU CAN FINSUORT 3110 01:57:21,000 --> 01:57:24,000 FOR THOSE TWO CHARACTERIZATIONS 3111 01:57:24,000 --> 01:57:25,000 AND THE DEPARTMENT OF JUSTICE 3112 01:57:25,000 --> 01:57:27,000 HAS NOT T D TO COME TO GRIPS 3113 01:57:27,000 --> 01:57:30,000 WITH HOW WE WOULD ANALYZE THAT 3114 01:57:30,000 --> 01:57:31,000 SET OF INTERACTIONS. >> THANK YOU. 3115 01:57:31,000 --> 01:57:33,000 >> JUSTICE GORSUCH? 3116 01:57:33,000 --> 01:57:36,000 >> I WANTED CFIRM I THOUGHT 3117 01:57:36,000 --> 01:57:37,000 I HEARD THAT YOU THOUGHT THAT 3118 01:57:37,000 --> 01:57:39,000 THE BLASINGAME FRAMEWORK WAS THE 3119 01:57:39,000 --> 01:57:42,000 APPROPRIATONE. >> LARLYYES. 3120 01:57:42,000 --> 01:57:47,000 WE AEEITH THE IDEA OF THE 3121 01:57:48,000 --> 01:57:50,000 DISTINCTIO BETWEEN OFFICEHOLDER 3122 01:57:50,000 --> 01:57:52,000 AND OFFICE SEEKER. 3123 01:57:52,000 --> 01:57:55,000 WE ALSO AGREE THAT IF IT IS 3124 01:57:55,000 --> 01:57:57,000 OBJECTIVELY REASONABLE W 3125 01:57:57,000 --> 01:58:01,000 THE ACTIVITIES AS OSOF 3126 01:58:01,000 --> 01:58:02,000 OFFICEHOLDER, THEN THE 3127 01:58:02,000 --> 01:58:04,000 FITZGERALD IMMUNITY KICKS IN. 3128 01:58:04,000 --> 01:58:07,000 I THINK WE WOULD LOOK MORE AT 3129 01:58:07,000 --> 01:58:09,000 THE CONTENT OF THE ACTUAL 3130 01:58:09,000 --> 01:58:11,000 INTERACTION IN ORDER TO MAKE 3131 01:58:11,000 --> 01:58:15,000 THAT DETERMINATION THAN 3132 01:58:15,000 --> 01:58:16,000 BLASINGAME SUGGESTED ON THE 3133 01:58:16,000 --> 01:58:17,000 FACTS OF THE CASE MIGHT BE 3134 01:58:17,000 --> 01:58:19,000 PROPRIATE. >> CAN YOU GIVE ME AN EXAMPLE OF 3135 01:58:19,000 --> 01:58:20,000 WHAT Y HAVE IN MIND MIGHT BE 3136 01:58:20,000 --> 01:58:21,000 APPROPRIATE? 3137 01:58:21,000 --> 01:58:23,000 I'M TRYING TO UNDERSTAND THE 3138 01:58:23,000 --> 01:58:24,000 NUANCE. 3139 01:58:24,000 --> 01:58:29,000 >> BLASINGAME, GENERALLY VER 3140 01:58:29,000 --> 01:58:30,000 FAVORABLE, PRO-GOVERNMENT 3141 01:58:30,000 --> 01:58:31,000 FRAMEWORK THAT WE ENDORSE. 3142 01:58:31,000 --> 01:58:36,000 NOT HERE, BECAUSE WE DON'T THINK 3143 01:58:36,000 --> 01:58:38,000 FITZGERALD APPLIES. >> I UNDERSTAND THAT, BU 3144 01:58:38,000 --> 01:58:41,000 PUTTING THAT ASIDE, THE 3145 01:58:41,000 --> 01:58:43,000 DIINCTION BETWEEN OFFICIAL ACT AND PRIVATE OFFICE SEEKER, THEIR 3146 01:58:43,000 --> 01:58:45,000 TEST IS YOU THINK GOOD ENOUGH 3147 01:58:45,000 --> 01:58:47,000 FOR VEMENT WORK? 3148 01:58:47,000 --> 01:58:52,000 >> ON THIS ONE, THE DEPARTMENT 3149 01:58:52,000 --> 01:58:54,000 HASN'T TAKEN A NEXT STEP SINCE 3150 01:58:54,000 --> 01:58:56,000 THE BLASINGAME DECISION, BUT LET 3151 01:58:56,000 --> 01:58:58,000 ME OFFER A FEW THOUGHTS THAT 3152 01:58:58,000 --> 01:59:00,000 MIGHT CLARIFY IT 3153 01:59:00,000 --> 01:59:02,000 THE BLAS DECISION FOCUSED 3154 01:59:02,000 --> 01:59:05,000 ON OBJTI CONTEXTUAL 3155 01:59:05,000 --> 01:59:06,000 INDICATIONS TO SEE WHETHER THE 3156 01:59:06,000 --> 01:59:08,000 PRESIDENT WAS ACTING AS A 3157 01:59:08,000 --> 01:59:12,000 CAMPAIGNER AS OPPOSED TO AN 3158 01:59:12,000 --> 01:59:13,000 OFFICEHOLDER. 3159 01:59:13,000 --> 01:59:15,000 I THINK THAT THAT DECISION CAN 3160 01:59:15,000 --> 01:59:20,000 ALSO BE 3161 01:59:21,000 --> 01:59:22,000 AND WH THE PRESIDENT ACTUALLY 3162 01:59:22,000 --> 01:59:23,000 SAID. 3163 01:59:23,000 --> 01:59:27,000 LET ME ILLUSTRATE THAT BRIEFLY. 3164 01:59:27,000 --> 01:59:28,000 IN ONE OF THE INTERACTIONS 3165 01:59:28,000 --> 01:59:31,000 BETWEEN PETITION AND A STATE 3166 01:59:31,000 --> 01:59:33,000 OFFICIAL, PETITIONER IS ALLEGED 3167 01:59:33,000 --> 01:59:34,000 TO HAVE SAID I NEED YOU TO FIND 3168 01:59:34,000 --> 01:59:38,000 ME 11,000 VOTES. 3169 01:59:38,000 --> 01:59:40,000 I THINK IF YOU LOOK AT THAT 3170 01:59:40,000 --> 01:59:43,000 CONTENT, IT'S PTTY CLEAR THAT 3171 01:59:43,000 --> 01:59:45,000 PETITIONER IS ACTING IN THE CAPACITY AS OFFICE SEEKER, NOT 3172 01:59:45,000 --> 01:59:47,000 AS PRESIDENT, AND WE WOU LK 3173 01:59:47,000 --> 01:59:49,000 AT THAT CONTENT. 3174 01:59:49,000 --> 01:59:51,000 >> BUT I AM JUST FOCUSED ON THE 3175 01:59:51,000 --> 01:59:52,000 LEGAL TEST. 3176 01:59:52,000 --> 01:59:53,000 I'M NOT ARG ANY EXCEPTIONS 3177 01:59:53,000 --> 01:59:55,000 TO IT. 3178 01:59:55,000 --> 02:00:00,000 >> OTHER THAN OFF-LIMITS THAN I 3179 02:00:00,000 --> 02:00:02,000 WOUL 3180 02:00:02,000 --> 02:00:04,000 >>K. 3181 02:00:04,000 --> 02:00:06,000 AND WANT TO UNDERSTAND ON THE 3182 02:00:06,000 --> 02:00:08,000 CORE IMMUNITY FOR WHATEVER BIRD 3183 02:00:08,000 --> 02:00:10,000 USE, IT SEEMS TO ME WE ARE 3184 02:00:10,000 --> 02:00:11,000 NARROWING THE GROUND OF DISPUTE 3185 02:00:11,000 --> 02:00:13,000 HERE CONSIDERABLY. 3186 02:00:13,000 --> 02:00:16,000 DO WE LOOK AT MOTESTHE 3187 02:00:16,000 --> 02:00:17,000 PRESIDENT'S MOTIVES FOR HIS 3188 02:00:17,000 --> 02:00:22,000 TIS? I MEAN, FOR EXAMPLE, HE HAS LOTS 3189 02:00:23,000 --> 02:00:26,000 OF WAR POWS,S WE DISCUSSED, 3190 02:00:26,000 --> 02:00:28,000 BUT HEIG USE THEM IN ORDER TO ENHANCEISERSONAL 3191 02:00:28,000 --> 02:00:29,000 INTERESTS. 3192 02:00:29,000 --> 02:00:31,000 IS THAT RELEVANT CONSIDERATION 3193 02:00:31,000 --> 02:00:32,000 WHEN WE ARE LOOKING AT CORE 3194 02:00:32,000 --> 02:00:35,000 POWERS? >> I AM THINKING OF THISAS 3195 02:00:35,000 --> 02:00:38,000 LOOKING AT THE OBJECTIVE OF THE 3196 02:00:38,000 --> 02:00:41,000 ACTIVITIES AS OPPOSED TO THE 3197 02:00:41,000 --> 02:00:42,000 KIND OF SUBJECTIVE MOTIVE IN THE 3198 02:00:42,000 --> 02:00:46,000 SENSE THAT YOUR HONOR SUGGES. 3199 02:00:46,000 --> 02:00:48,000 I THINK THERE IS A LOT OF 3200 02:00:48,000 --> 02:00:49,000 CONCERN ABOUT SAYING ELECTORAL 3201 02:00:49,000 --> 02:00:50,000 VOTE IS TO BE RLEED. 3202 02:00:50,000 --> 02:00:53,000 >> EVERY FIRST-TERMRESIDENT, 3203 02:00:53,000 --> 02:00:55,000 EVERYTHING HE DOES CAN BE SEEN 3204 02:00:55,000 --> 02:00:59,000 THROUGH THE PRISM BY CRITICS,T 3205 02:00:59,000 --> 02:01:01,000 LEAST, OF HIS PERSON IEREST 3206 02:01:01,000 --> 02:01:03,000 IN REELECTION. 3207 02:01:03,000 --> 02:01:05,000 SO YOU WOULDN'T WANT THAT, I 3208 02:01:05,000 --> 02:01:08,000 INYOU WOULD SAY, PERSONAL 3209 02:01:08,000 --> 02:01:12,000 MOTIVATION THOUG LIMITS WITH RESPECT TTHCORE POWERS. 3210 02:01:12,000 --> 02:01:15,000 WH RESPECT FOR POWERS, WE 3211 02:01:15,000 --> 02:01:16,000 THINK THERE ARE THINGS THAT CAN 3212 02:01:16,000 --> 02:01:19,000 BE REGULATED AT ALL. 3213 02:01:19,000 --> 02:01:22,000 >> REGARDLESS OF MIV 3214 02:01:22,000 --> 02:01:24,000 SO THAN ANY NONCORE POWERS IS 3215 02:01:24,000 --> 02:01:26,000 WHAT WE ARE FIGHTINGVE 3216 02:01:26,000 --> 02:01:31,000 WHAT ROLE DO MOTIVES PLAY, THEN? 3217 02:01:31,000 --> 02:01:34,000 ONE COULD REMOVE AN APPOINTEE -- 3218 02:01:34,000 --> 02:01:35,000 FIRST OF ALL, MAYBE ASKHIS 3219 02:01:35,000 --> 02:01:37,000 FIRST. 3220 02:01:37,000 --> 02:01:38,000 IS REMOVING AN APPOINTEE, A 3221 02:01:38,000 --> 02:01:40,000 PRESIDENTIAL APPOINTEE A CORE 3222 02:01:40,000 --> 02:01:42,000 POWER OR NONCORE POWER? 3223 02:01:42,000 --> 02:01:46,000 >> HERE I MIGHT EDO 3224 02:01:46,000 --> 02:01:47,000 DIFFERENTIATE BETWEEN THE 3225 02:01:47,000 --> 02:01:52,000 CRITALOLE OFFICERHAHAVE 3226 02:01:52,000 --> 02:01:56,000 BEEN REGARDEDS HAVING A 3227 02:01:56,000 --> 02:01:59,000 CONSTITIAL STATUS OF BEING REMOVABLE AT WILL FROM THE 3228 02:01:59,000 --> 02:02:00,000 OFFICERS WERE CONGRESS DOES HAVE 3229 02:02:00,000 --> 02:02:02,000 SOME REGATY LATITUDE TO 3230 02:02:02,000 --> 02:02:07,000 IMPOSE RESTRICTIONS ON REMOVAL. 3231 02:02:07,000 --> 02:02:09,000 >> I UNDERSTAND THAT. 3232 02:02:09,000 --> 02:02:11,000 >> PUTTING THAT ASI, 3233 02:02:11,000 --> 02:02:12,000 APPOINTING A PRINCIPAL OFFICER 3234 02:02:12,000 --> 02:02:14,000 IS A CORE POR. 3235 02:02:14,000 --> 02:02:16,000 'M NOT PREPARED TO SAY THAT 3236 02:02:16,000 --> 02:02:17,000 THERE IS NO POTENTIAL CRIMINAL 3237 02:02:17,000 --> 02:02:19,000 REGULATION TO SAY YOU CAN'T DO 3238 02:02:19,000 --> 02:02:22,000 IT FOR CORRUPT PURPOS TO 3239 02:02:22,000 --> 02:02:23,000 ENRICH YOURSELF, FOR EXAMP. 3240 02:02:23,000 --> 02:02:28,000 >> BRIBERY, ALRIT. 3241 02:02:28,000 --> 02:02:30,000 BUT MOTIVES COME INTO THE CORE 3242 02:02:30,000 --> 02:02:33,000 POWER ANALYSIS ARE NOT, AT THE 3243 02:02:33,000 --> 02:02:35,000 FRONTEARD KNOW, AND NOW I AM 3244 02:02:35,000 --> 02:02:36,000 HEARINMAE. 3245 02:02:36,000 --> 02:02:38,000 >> THINK KATIE MIGHT BE MORE 3246 02:02:38,000 --> 02:02:40,000 APPROPRIATE BECAUSE THE 3247 02:02:40,000 --> 02:02:42,000 DEPARTMENT HAS NOT HAD TO TAKE A 3248 02:02:42,000 --> 02:02:45,000 POSITION ON EXACTLY HOW THESE 3249 02:02:45,000 --> 02:02:49,000 CORE POWERS WOULD RESOLVED AS 3250 02:02:49,000 --> 02:02:51,000 APPLIED CONSTITUTIONAL ANALYSIS. 3251 02:02:51,000 --> 02:02:52,000 NONE IS INVOLVED IN THIS CASE. 3252 02:02:52,000 --> 02:02:56,000 >> I GUE 'M WONDERING -AND 3253 02:02:56,000 --> 02:02:57,000 'M NOT CONCERNED ABOUT THIS 3254 02:02:57,000 --> 02:03:00,000 CASE IS FUTURENES -- THESE 3255 02:03:00,000 --> 02:03:02,000 NONCE WERS AND MAYBE CORE 3256 02:03:02,000 --> 02:03:03,000 POWERS WERE A PRESIDENT IS 3257 02:03:03,000 --> 02:03:07,000 ACTING WITH AT LEAST PART 3258 02:03:07,000 --> 02:03:08,000 PERSONAL INTEREST IN GETTING 3259 02:03:08,000 --> 02:03:10,000 REELECTED, EVERYTHING HDO HE 3260 02:03:10,000 --> 02:03:12,000 WANTS TO GET REELECTED. 3261 02:03:12,000 --> 02:03:15,000 IF YOU A AOWING HIM MOTIVE 3262 02:03:15,000 --> 02:03:18,000 TO COLOR THAT, I'M WONDERING HOW 3263 02:03:18,000 --> 02:03:22,000 MUCH IS LEFT OF EITHERHEORE 3264 02:03:22,000 --> 02:03:24,000 OR NONCORE POWERS. 3265 02:03:24,000 --> 02:03:26,000 >> WOULD BE FINE WITH CARVING 3266 02:03:26,000 --> 02:03:28,000 THAT OUT AND DEEMING THAT TO BE 3267 02:03:28,000 --> 02:03:29,000 SOMETHING THAT IS INTRINSIC IN 3268 02:03:29,000 --> 02:03:31,000 OUR ELECTORAL SYSTEM. 3269 02:03:31,000 --> 02:03:32,000 WE ARE NOT TALKING AUT 3270 02:03:32,000 --> 02:03:34,000 APPLYING CRIMINAL LAW TO 3271 02:03:34,000 --> 02:03:36,000 SOMEBODY WHO MAKES AN 3272 02:03:36,000 --> 02:03:37,000 ANNOUNCEMENT THAT THIS PROGRAM 3273 02:03:37,000 --> 02:03:38,000 LL BE GOOD FOR THE UNITED 3274 02:03:38,000 --> 02:03:40,000 STATES AND SOMEBODY COULD COME 3275 02:03:40,000 --> 02:03:41,000 ALONG AND SAY WELL YOU REALLY 3276 02:03:41,000 --> 02:03:44,000 DID IT TO GETEECTED. 3277 02:03:44,000 --> 02:03:45,000 LEAVING ASIDE WHETHER ANY EVENT 3278 02:03:45,000 --> 02:03:47,000 VIOLATES A CRIMINAL LAW, LET'S 3279 02:03:47,000 --> 02:03:49,000 ASSUME THAT IT DOES. 3280 02:03:49,000 --> 02:03:50,000 I'M DOUBTFUL THAT IT DOES 3281 02:03:50,000 --> 02:03:53,000 BECAUSE I DON'T THINK CRIMINAL 3282 02:03:53,000 --> 02:03:54,000 LAWS GENERALLY OPERATE ON 3283 02:03:54,000 --> 02:03:55,000 MOTIVES AS OPPOSED TO OBJECTIVES 3284 02:03:55,000 --> 02:03:59,000 AND PURPOSES, BUT -- >> 3285 02:03:59,000 --> 02:04:03,000 INTENTION ASIDE, INTENTION IS 3286 02:04:03,000 --> 02:04:04,000 EMOTIVE ANDMOTIVE IS 3287 02:04:04,000 --> 02:04:05,000 INTENTION, SALUTE LEAVE THAT 3288 02:04:05,000 --> 02:04:09,000 ASIDE. >> PUTTING THAT ASIDE, THAT 3289 02:04:09,000 --> 02:04:10,000 REALLY TO ME FALLS IN A VERY 3290 02:04:10,000 --> 02:04:13,000 DIFFERENT CATEGORY, AND IT IS 3291 02:04:13,000 --> 02:04:15,000 ALSO -- >> THERE ARE SOME 3292 02:04:15,000 --> 02:04:19,000 MOVETHATRE COGNIZABLE AND 3293 02:04:19,000 --> 02:04:20,000 HE THAT AREN'T. 3294 02:04:20,000 --> 02:04:22,000 IS AWKWARD WHEN WE LOOK BACK 3295 02:04:22,000 --> 02:04:27,000 AT THE INJUNCTION OF THE EARLY 3296 02:04:28,000 --> 02:04:29,000 CASES. YOU CAN'T ENJOIN A PRESIDENT. 3297 02:04:29,000 --> 02:04:31,000 YOU CAN HOLD HIM IN CONTEMPT. 3298 02:04:31,000 --> 02:04:33,000 FOR SURE. 3299 02:04:33,000 --> 02:04:36,000 >> CAN I TRY ONE MORE TIME TO 3300 02:04:36,000 --> 02:04:37,000 CLIF 3301 02:04:37,000 --> 02:04:41,000 >>T DIDN'T MATTER WHAT THE 3302 02:04:41,000 --> 02:04:42,000 PRESIDENT'S MOTIVES RE WE ARE 3303 02:04:42,000 --> 02:04:44,000 NOT GOING TO LOOK BEHIND IT. 3304 02:04:44,000 --> 02:04:46,000 SAME THING WITH NIXO 3305 02:04:46,000 --> 02:04:49,000 WE SAID GOSH, THAT IS SOMETHING 3306 02:04:49,000 --> 02:04:52,000 COURTS SHOULDN'T GET ENGAGE IN 3307 02:04:52,000 --> 02:04:53,000 BECAUSE PREDES HAVE ALL 3308 02:04:53,000 --> 02:04:55,000 MANNER OF MOTIVES. 3309 02:04:55,000 --> 02:04:56,000 AND AGAIN, I'M NOT CONCERNED 3310 02:04:56,000 --> 02:04:59,000 ABOUT THIS CASE, BUT I AM 3311 02:04:59,000 --> 02:05:00,000 CONCERNED ABOUT FUTURE USES OF 3312 02:05:00,000 --> 02:05:03,000 THE CRIMINAL LAW TO TARGET 3313 02:05:03,000 --> 02:05:04,000 POLITICAL OPPONENTS BASED ON 3314 02:05:04,000 --> 02:05:06,000 ACCUSATIONS ABOUT THEIR MOTIVES. 3315 02:05:06,000 --> 02:05:08,000 WHETHER IT IECTION OR WHO 3316 02:05:08,000 --> 02:05:13,000 KNOWS WHAT CORRUPT MEANS IN 1512 3317 02:05:15,000 --> 02:05:19,000 , WDON'T KNOW WHAT THAT MEANS. 3318 02:05:19,000 --> 02:05:20,000 BUT THE DANGEROUSNESS O 3319 02:05:20,000 --> 02:05:21,000 ACCUSING YOUR POLITICAL OPPONENT 3320 02:05:21,000 --> 02:05:23,000 OF HAVING BAD MOTIVES, IF IS 3321 02:05:23,000 --> 02:05:26,000 ENOUGH TO OVERCOME YOUR CORE 3322 02:05:26,000 --> 02:05:31,000 POWERS OR AN OTHER LIMS, 3323 02:05:31,000 --> 02:05:33,000 REACTIONS, THOUGHTS? 3324 02:05:33,000 --> 02:05:35,000 >> YOU'RE RAISING A VERY 3325 02:05:35,000 --> 02:05:36,000 DIFFICULT QUESTION. 3326 02:05:36,000 --> 02:05:38,000 THAT IS THE IDEA. 3327 02:05:38,000 --> 02:05:40,000 TESTING THE LIMITS OF BOTH DE 3328 02:05:40,000 --> 02:05:42,000 ARGUMENTS. 3329 02:05:42,000 --> 02:05:44,000 AND SOMETHING I D'T NORMALLY 3330 02:05:44,000 --> 02:05:45,000 SAY, THAT IS REALLY NOT INVOLVED 3331 02:05:45,000 --> 02:05:46,000 IN THIS CASE. 3332 02:05:46,000 --> 02:05:49,000 [LAUGHTER] 3333 02:05:49,000 --> 02:05:50,000 WE DON'T HAVE BANK POLITICAL 3334 02:05:50,000 --> 02:05:51,000 MOTIVE IN THAT SENSE. 3335 02:05:51,000 --> 02:05:54,000 >> I APPRECIATE THAT BUT YOU 3336 02:05:54,000 --> 02:05:55,000 ALSO APPRECIATEHAT WE ARE 3337 02:05:55,000 --> 02:05:56,000 WRITING A RULE FOR THE AGES. 3338 02:05:56,000 --> 02:05:59,000 >> AND I THINK I WOULD START BY 3339 02:05:59,000 --> 02:06:02,000 LOOK THE STATUTES. 3340 02:06:02,000 --> 02:06:03,000 SEEING WHAT RESTRICTIONS THEY DO 3341 02:06:03,000 --> 02:06:04,000 PLACE ON THE PRESIDENT'S 3342 02:06:04,000 --> 02:06:09,000 CONDUCT. 3343 02:06:09,000 --> 02:06:11,000 FOR EXAMPLE, THE STATUE THAT 3344 02:06:11,000 --> 02:06:12,000 RIROUGHT TO THE FEET THE 3345 02:06:12,000 --> 02:06:14,000 LAWFUL FUNCTION OF THE UNITED STATES. 3346 02:06:14,000 --> 02:06:15,000 STATUTE DEFINES WHAT THE 3347 02:06:15,000 --> 02:06:17,000 HAS TO HAVE IN MIND.DEFENDANT 3348 02:06:17,000 --> 02:06:20,000 HAS TO BE TO DEFEAT SOMETHING 3349 02:06:20,000 --> 02:06:21,000 THE UNITED STATES IS DOING AND 3350 02:06:21,000 --> 02:06:22,000 IT HAS TO BE BY DECEPTION. 3351 02:06:22,000 --> 02:06:23,000 I DON'T THINK THAT GETS US INTO 3352 02:06:23,000 --> 02:06:26,000 UND OF MOTIVE-HUNTING IN 3353 02:06:26,000 --> 02:06:29,000 THE AREA WHERE WE ARE AS 3354 02:06:29,000 --> 02:06:31,000 CONCERNED AS THE CORPO 3355 02:06:31,000 --> 02:06:33,000 ABOUT DOING SOMETHING THAT WOULD 3356 02:06:33,000 --> 02:06:34,000 UNDERMINE THE PNCY AND THE 3357 02:06:34,000 --> 02:06:37,000 EXECUTIVE BRANCH. 3358 02:06:37,000 --> 02:06:38,000 ANAY HAVE DIFFERENT VIEWS 3359 02:06:38,000 --> 02:06:40,000 ON THE CLA AND THE SCOPE OF 3360 02:06:40,000 --> 02:06:43,000 THAT STATUTE. 3361 02:06:43,000 --> 02:06:46,000 I THINK IF REPORT DOES INTERPRET 3362 02:06:46,000 --> 02:06:47,000 CORRUPT AS INVOLVING A 3363 02:06:47,000 --> 02:06:49,000 CONSCIOUSNESS OF WRONGDOING AND 3364 02:06:49,000 --> 02:06:50,000 ELEVATES THAT THE CONSCIOUSNESS 3365 02:06:50,000 --> 02:06:52,000 OF ILLEGALITY, AND WE ARE IN A 3366 02:06:52,000 --> 02:06:54,000 FFERENT R 3367 02:06:54,000 --> 02:06:55,000 WANTING TO GET REELECTED IS NO 3368 02:06:55,000 --> 02:06:58,000 AN ILLEGAL MOTIVE YOU DON'T 3369 02:06:58,000 --> 02:06:59,000 HAVE TO WORRY ABOUT PROSECUTING PRESIDENTS FOR THAT. 3370 02:06:59,000 --> 02:07:01,000 >> THANK YOU. >> JUSTICE KAVANAUGH? 3371 02:07:01,000 --> 02:07:04,000 >> AS YOU' IICATED THIS CASE 3372 02:07:04,000 --> 02:07:08,000 HAS HUGE IMPLICATIONS FOR THE 3373 02:07:08,000 --> 02:07:09,000 PRESIDENCY, AND THE FUTURE OF 3374 02:07:09,000 --> 02:07:10,000 THE PRESIDENCY, FOR THE FUR 3375 02:07:10,000 --> 02:07:13,000 OF THE COUNTRY, IN MY VIEW. 3376 02:07:13,000 --> 02:07:14,000 YOREFERRED TO THE DEPARTMENT A 3377 02:07:14,000 --> 02:07:15,000 W MES AS HAVING SUPPORTED 3378 02:07:15,000 --> 02:07:16,000 POSITION. 3379 02:07:16,000 --> 02:07:19,000 WHO IN THE DEPARTMENT? 3380 02:07:19,000 --> 02:07:20,000 THE PRESIDENT, THE ATTORNEY 3381 02:07:20,000 --> 02:07:23,000 GENERAL? >> THE GENERAL THE UNITED 3382 02:07:23,000 --> 02:07:24,000 STATES. 3383 02:07:24,000 --> 02:07:26,000 PART OF WHICH THE WAY IN WHICH 3384 02:07:26,000 --> 02:07:27,000 THE SPECIAL COUNSEL FUNCTIONS IS 3385 02:07:27,000 --> 02:07:32,000 AS A DONTF THE DEPARTMENT 3386 02:07:33,000 --> 02:07:36,000 OF JUSTICE, THAT WE REACH OUT 3387 02:07:36,000 --> 02:07:37,000 AND CONSULT AND ON A QUESTION OF 3388 02:07:37,000 --> 02:07:38,000 THIS MAGNITUDE THAT INVOLVES 3389 02:07:38,000 --> 02:07:39,000 EQUITIES THAT ARE FAR BEYOND 3390 02:07:39,000 --> 02:07:41,000 THIS PROSECUTION, AS THE 3391 02:07:41,000 --> 02:07:42,000 QUESTIONS T COURT. 3392 02:07:42,000 --> 02:07:47,000 >> SO THE SOCIR GENERAL. 3393 02:07:49,000 --> 02:07:51,000 COND, LIKE JUSTICE GORSUCH, 3394 02:07:51,000 --> 02:07:52,000 I'M NOT FOCUSED ONHE HEARING 3395 02:07:52,000 --> 02:07:56,000 NOW OF THIS CASE. 3396 02:07:56,000 --> 02:07:57,000 I'M VERY CONCERN AUT THE 3397 02:07:57,000 --> 02:07:59,000 FUTURE. I THINK ONE OF THE COURT'S 3398 02:07:59,000 --> 02:08:00,000 BIGGEST MISTAKES WAS ORSON VS. 3399 02:08:00,000 --> 02:08:03,000 OLSON. 3400 02:08:03,000 --> 02:08:04,000 I THINK THAT WAS A TERRIBLE 3401 02:08:04,000 --> 02:08:05,000 POSITION FOR THE PRESIDENCY AND 3402 02:08:05,000 --> 02:08:06,000 FOR THE COUNTRY. 3403 02:08:06,000 --> 02:08:08,000 AND NOT BECAUSE THERE WERE BAD 3404 02:08:08,000 --> 02:08:12,000 PEOP A INDEPENDENT COUNCILS, 3405 02:08:12,000 --> 02:08:13,000 BUT PRESIDENT REAGAN'S 3406 02:08:13,000 --> 02:08:14,000 MINISTRATION, PRESIDENT BUSH, 3407 02:08:14,000 --> 02:08:17,000 PRESIDENT CLINTON WERE REALLY 3408 02:08:17,000 --> 02:08:21,000 HAMPERED, IN THEIR VIEW, ALL 3409 02:08:21,000 --> 02:08:22,000 THREE, BY THINPENDENT 3410 02:08:22,000 --> 02:08:24,000 COUNSEL STRUCTURE. 3411 02:08:24,000 --> 02:08:26,000 AND WHAT I'M WORRIED ABOUT HERE 3412 02:08:26,000 --> 02:08:31,000 IS, LET'S RELAXRTLE TWO A 3413 02:08:32,000 --> 02:08:33,000 BIT FOR THE EDOF THE MOMENT. 3414 02:08:33,000 --> 02:08:36,000 I'M WORRIED ABOUT A SIMILAR KIND 3415 02:08:36,000 --> 02:08:39,000 OF SITUATION APPLYING RE 3416 02:08:39,000 --> 02:08:40,000 THAT WAS A PROSECUTOR 3417 02:08:40,000 --> 02:08:41,000 INVESTIGATING A PRESIDENT IN 3418 02:08:41,000 --> 02:08:44,000 EACH OTH CIRCUMSTANCES, 3419 02:08:44,000 --> 02:08:45,000 SOMEONE PICKED FROM THOPSITE 3420 02:08:45,000 --> 02:08:49,000 PARTY, CURRENT PRESIDENT, 3421 02:08:49,000 --> 02:08:53,000 USUALLY WAS HAVE TO WORK. 3422 02:08:53,000 --> 02:08:56,000 ANTHE FAIRNESS OF A PROCESS 3423 02:08:56,000 --> 02:08:59,000 MUST BE JUDGED ON THE BASISF WHAT IT PERMITS TO HAPPEN, NOT 3424 02:08:59,000 --> 02:09:00,000 WHAT ITRODUCES IN THE 3425 02:09:00,000 --> 02:09:02,000 PARTICULAR CASE. 3426 02:09:02,000 --> 02:09:03,000 YOU'VE EMPHASIZED MANY TIMES 3427 02:09:03,000 --> 02:09:04,000 REGULARITY OF THE DEPARTMENT OF 3428 02:09:04,000 --> 02:09:05,000 JUSTICE. 3429 02:09:05,000 --> 02:09:08,000 AND HE SAID, AND I THINK THIS 3430 02:09:08,000 --> 02:09:09,000 APIE TO THE INDEPENDENT 3431 02:09:09,000 --> 02:09:12,000 COUNSEL SYSTEM AND CAN APPLY IF 3432 02:09:12,000 --> 02:09:13,000 PRESIDENTS ARE ROUTINELY SJE 3433 02:09:13,000 --> 02:09:15,000 TO INVESTIGATION GOING FORWARD. 3434 02:09:15,000 --> 02:09:16,000 ONE THING ICERTAIN, HOWEVER, 3435 02:09:16,000 --> 02:09:18,000 IT INVOLVES INVESTIGATING AND 3436 02:09:18,000 --> 02:09:19,000 PERHAPS BUS GETTING A PARTICULAR 3437 02:09:19,000 --> 02:09:20,000 INDIVIDUAL. 3438 02:09:20,000 --> 02:09:25,000 CAN MINE -- WHAT WOULD THE 3439 02:09:25,000 --> 02:09:29,000 REACTION BE IF IN AN AREA NOT 3440 02:09:29,000 --> 02:09:31,000 COVEREBYHE STATUTE, THE 3441 02:09:31,000 --> 02:09:33,000 JUSTICE PAMENT HOSTED A PUBLIC NOTICE INVITING 3442 02:09:33,000 --> 02:09:35,000 APPLICANTS TO ASSIST IN AN 3443 02:09:35,000 --> 02:09:37,000 VESTIGATION AND POSSIBLE 3444 02:09:37,000 --> 02:09:39,000 PROSUTN OF A CERTAIN PROMINENT PERSON? 3445 02:09:39,000 --> 02:09:42,000 DOES THIS NOT INVITE WITH 3446 02:09:42,000 --> 02:09:43,000 JUSTICE JACKSON DESCRIBED AS PICKING THE MAN ANDNSTING 3447 02:09:43,000 --> 02:09:44,000 THE LAW BOOKS OR PUTTING 3448 02:09:44,000 --> 02:09:47,000 INVESTIGATS WORK TO PINS 3449 02:09:47,000 --> 02:09:48,000 AND EFFECTS ON HIM? 3450 02:09:48,000 --> 02:09:49,000 TO BE REHE INVESTIGATION 3451 02:09:49,000 --> 02:09:52,000 MUST RELATE TO THE AREA CRIMINAL 3452 02:09:52,000 --> 02:09:54,000 OFNS TESTIFIED BY THE 3453 02:09:54,000 --> 02:09:56,000 STATUTE. 3454 02:09:56,000 --> 02:10:00,000 NOTHING PREVENTED FROM BNG 3455 02:10:00,000 --> 02:10:02,000 VERY BROAD. I PARAPHRASE AT THE END BECAUSE 3456 02:10:02,000 --> 02:10:04,000 I AM REFERRING TO THE JUES 3457 02:10:04,000 --> 02:10:07,000 THAT IS THE CONCERN GOING 3458 02:10:07,000 --> 02:10:09,000 FORWARD, IS THATHE SYSTEM WHEN 3459 02:10:09,000 --> 02:10:14,000 FORMER PRESIDENT ARE SUBJECT IS 3460 02:10:19,000 --> 02:10:20,000 GOING TO CLE BACK AND BE USED 3461 02:10:20,000 --> 02:10:22,000 AIT THE CURRENT OR NEXT 3462 02:10:22,000 --> 02:10:23,000 PRESIDENT AND THE PRESIDENT 3463 02:10:23,000 --> 02:10:26,000 AFTER THAT. 3464 02:10:26,000 --> 02:10:28,000 ALL THAT, I WANT YOU TO TRY TO 3465 02:10:28,000 --> 02:10:29,000 ALLAY THAT CONCERN. 3466 02:10:29,000 --> 02:10:32,000 WHY IS THIS NOT ORSON V OLSON 3467 02:10:32,000 --> 02:10:34,000 REDUX IF WE AGREE WITH YOU? 3468 02:10:34,000 --> 02:10:38,000 >> FIRST OF ALL THE INDEPENDENT 3469 02:10:38,000 --> 02:10:39,000 NT REGIME DID HAVE MANY 3470 02:10:39,000 --> 02:10:41,000 STRUCTURAL FEATURES THAT 3471 02:10:41,000 --> 02:10:44,000 EMPHASIZEDNDEPENDENCE AT THE 3472 02:10:44,000 --> 02:10:48,000 PEE OF ACCOUNTABILITY. 3473 02:10:48,000 --> 02:10:50,000 WE DON'T HAVE THAT REGIME NOW 3474 02:10:50,000 --> 02:10:51,000 BUT EVEN UNDER THAT REGIME I 3475 02:10:51,000 --> 02:10:53,000 THINK IF YOU LOOKED AT LAWRENCE 3476 02:10:53,000 --> 02:10:58,000 WALSH'S REPORT ON IRAN CONTRA, 3477 02:10:58,000 --> 02:11:00,000 THAT WAS A VERAMENTAL 3478 02:11:00,000 --> 02:11:01,000 POINT FOR THE COURT TO CONSIDER. 3479 02:11:01,000 --> 02:11:04,000 JUDGE WALSH SAID I INVESTIGATED 3480 02:11:04,000 --> 02:11:08,000 ESATRS, THE PROOF DID NOT 3481 02:11:08,000 --> 02:11:13,000 MERELY COME CLOSE TO ESTABLISHINGRINAL VIOLATION. 3482 02:11:14,000 --> 02:11:16,000 THROUGH THE INDEPENDENT COUNSEL 3483 02:11:16,000 --> 02:11:17,000 ERA, WITHOUT THESE PROSECUTIONS 3484 02:11:17,000 --> 02:11:19,000 HAVING GONOFF ON A RUNAWAY 3485 02:11:19,000 --> 02:11:21,000 TRAIN. 3486 02:11:21,000 --> 02:11:24,000 >> I THINK PRESIDENT REAGAN, 3487 02:11:24,000 --> 02:11:27,000 BUSH, AND CLINTON WHETHER 3488 02:11:27,000 --> 02:11:28,000 RIGHTLY OR WRONGLY THOUGHT CONTRARY TO WHAT YOU JUSTAI 3489 02:11:28,000 --> 02:11:31,000 >> I THINKOBODY LIKES BEING 3490 02:11:31,000 --> 02:11:34,000 DIDN'T RESULT IN THE KIND OF IT 3491 02:11:34,000 --> 02:11:35,000 VINDICTIVE PROSECUTION THAT I 3492 02:11:35,000 --> 02:11:38,000 THINK YOURONS RAISING. 3493 02:11:38,000 --> 02:11:40,000 WE HAVE A DIFFERENT ST NOW. 3494 02:11:40,000 --> 02:11:42,000 I THINK THERE WAS A CONSEUS 3495 02:11:42,000 --> 02:11:44,000 THROUGHOUT WASHINGTON THAT THERE 3496 02:11:44,000 --> 02:11:47,000 WERE FLAWS IN THE INDEPENDENT COUNSEL SYEM 3497 02:11:47,000 --> 02:11:50,000 WE NOW ARE INSIDE THE JUSTICE 3498 02:11:50,000 --> 02:11:51,000 DEPARTMENT WITHL 3499 02:11:51,000 --> 02:11:53,000 ACCOUNTABILITY RESTING WITH THE ATTORNEY GENERAL, SO THE SPECIAL 3500 02:11:53,000 --> 02:11:56,000 COUNSEL REGULATION NOW DOESN'T 3501 02:11:56,000 --> 02:11:57,000 OPERATE THE WAY THAT THE 3502 02:11:57,000 --> 02:11:59,000 INDEPENDENT COUNSEL REGULATIONS 3503 02:11:59,000 --> 02:12:01,000 DO. 3504 02:12:01,000 --> 02:12:02,000 THIS CORPORA HE SOMETHING TO 3505 02:12:02,000 --> 02:12:05,000 SAY ABOUT IT, I THINK, IF IT 3506 02:12:05,000 --> 02:12:07,000 WERE REVIV. 3507 02:12:07,000 --> 02:12:08,000 I'M T SURE ANYBODY IS IN FAVOR 3508 02:12:08,000 --> 02:12:11,000 OF THAT. >> I WASAYG THE MIRROR IMAGE 3509 02:12:11,000 --> 02:12:12,000 OF THAT ISNEAY SOMEONE COULD 3510 02:12:12,000 --> 02:12:13,000 PERCEIVE IT. 3511 02:12:13,000 --> 02:12:15,000 T I TAKE YOUR POINT ABOUT THE 3512 02:12:15,000 --> 02:12:16,000 DIFFERENT STRUCTURAL PROTECTIO 3513 02:12:16,000 --> 02:12:17,000 INTERNALLY. 3514 02:12:17,000 --> 02:12:19,000 LIKE JUSTICE SCALIA SAID, I DO 3515 02:12:19,000 --> 02:12:21,000 NOT MEAN TO SUGGEST ANYTHING OF 3516 02:12:21,000 --> 02:12:23,000 THE SWORD THE PRESENT CASE, WE 3517 02:12:23,000 --> 02:12:24,000 ARE NOT TALKING ABOUT THE PRESENT CA. 3518 02:12:24,000 --> 02:12:27,000 I'M TALKING ABOUT THE FUTURE. 3519 02:12:27,000 --> 02:12:30,000 ANOTHER POINT, YOU TKED ABOUT 3520 02:12:30,000 --> 02:12:31,000 THE CRIMINAL STATUTE. 3521 02:12:31,000 --> 02:12:33,000 IT'S VERY EY TO CHARACTERIZE 3522 02:12:33,000 --> 02:12:35,000 PRESIDENTIAL ACTIONS AS FALSE OR 3523 02:12:35,000 --> 02:12:40,000 MISLEADING UNDER VAGUE STATUTES. 3524 02:12:40,000 --> 02:12:41,000 PRESIDENT LYNDON JOHNSON, 3525 02:12:41,000 --> 02:12:45,000 STATEMENTS ABOUT T VTNAM WAR 3526 02:12:45,000 --> 02:12:47,000 SAY SOMETHING IS FALSE. 3527 02:12:47,000 --> 02:12:49,000 TURNED OUT TO BE FALSE THAT HE 3528 02:12:49,000 --> 02:12:50,000 SAYS ABOUT THE VIETNAM WAR. 3529 02:12:50,000 --> 02:12:53,000 371 PROCUON AFTER HE LEAVES 3530 02:12:53,000 --> 02:12:56,000 OFFICE? >> I THINK NOT. 3531 02:12:56,000 --> 02:12:58,000 THIS IS AN AREA THAT I DO THINK 3532 02:12:58,000 --> 02:13:00,000 MERITS SOME SERIOUS AND NUANCE 3533 02:13:00,000 --> 02:13:01,000 CONSIDERATION. 3534 02:13:01,000 --> 02:13:03,000 STATEMENTS THAT ARE MADE BY A 3535 02:13:03,000 --> 02:13:06,000 PRESIDENT TO THE PUBLIC ARE T 3536 02:13:06,000 --> 02:13:07,000 REALLY COMING WITHIN THE REALM 3537 02:13:07,000 --> 02:13:09,000 OF CRIMINAL STATUTES. 3538 02:13:09,000 --> 02:13:11,000 THEY'VE NEVER BEEN PROSECUTED. 3539 02:13:11,000 --> 02:13:12,000 I ALE THAT THE COURT CAN SAY 3540 02:13:12,000 --> 02:13:16,000 WHAT IF THEY WEREANTHEN I 3541 02:13:16,000 --> 02:13:19,000 THINK YOU GET WT I WOULD REGARDS A HARD CONSTITUTIONAL 3542 02:13:19,000 --> 02:13:21,000 QUESTION. 3543 02:13:21,000 --> 02:13:22,000 I WOULD PROBABLY GUIDE THE 3544 02:13:22,000 --> 02:13:24,000 AWAY FROM TRYING TO RESOLVE THAT 3545 02:13:24,000 --> 02:13:26,000 TODAY, ALTHOUGH I DO THINK IT IS 3546 02:13:26,000 --> 02:13:27,000 VERY DIFFERENT FROM OUR CASE AND 3547 02:13:27,000 --> 02:13:30,000 DISTINCTION WILL IN IMPORTANT 3548 02:13:30,000 --> 02:13:31,000 BUT YOU ARE DEALING HERE WITH 3549 02:13:31,000 --> 02:13:32,000 TWO BRANCHES OF GOVERNMENT THAT 3550 02:13:32,000 --> 02:13:35,000 HAVE AAROUNTNTEST IN THE 3551 02:13:35,000 --> 02:13:36,000 INTEGRITY AND EEM OF THEIR 3552 02:13:36,000 --> 02:13:38,000 INTERACTIONS WITH EACH OTHER. 3553 02:13:38,000 --> 02:13:39,000 ON THE ONE HAND, THE PRESIDE 3554 02:13:39,000 --> 02:13:41,000 OF COURSE SHOULD BE VERY FREE TO 3555 02:13:41,000 --> 02:13:46,000 USUAY SEND HIS CABINET 3556 02:13:46,000 --> 02:13:47,000 OFFICIALS AND SOME CABET 3557 02:13:47,000 --> 02:13:48,000 OFFICIALS TO CS TO PROVIDE 3558 02:13:48,000 --> 02:13:51,000 THEM WITH THE INFORMAEEDED 3559 02:13:51,000 --> 02:13:52,000 TO ENACT LEGISLATION AND TO MAKE 3560 02:13:52,000 --> 02:13:54,000 NATIONAL POLICY. 3561 02:13:54,000 --> 02:13:55,000 WE ARE VERY CONCERNED ABOUT 3562 02:13:55,000 --> 02:13:57,000 ANYTHING THATOU TRAMPLE 3563 02:13:57,000 --> 02:13:59,000 THAT. 3564 02:13:59,000 --> 02:14:02,000 ON THE OTHERS HAVE THE EQUATION, 3565 02:14:02,000 --> 02:14:03,000 CONGRESS HAS A COMPELLING 3566 02:14:03,000 --> 02:14:04,000 INTEREST IN RECEIVING ACCURATE 3567 02:14:04,000 --> 02:14:07,000 INFORMATION AND T VERY 3568 02:14:07,000 --> 02:14:08,000 LEAST, INFORMATI TT IS INTENTIONALLY AND KNOWINGLY 3569 02:14:08,000 --> 02:14:11,000 FALSE. 3570 02:14:11,000 --> 02:14:12,000 THAT WOULD POLLUTE THE -- 3571 02:14:12,000 --> 02:14:15,000 >> HOW ABOUT PRESIDENT FORD'S 3572 02:14:15,000 --> 02:14:17,000 PARDON? 3573 02:14:17,000 --> 02:14:18,000 VERY CONTROVERSIAL IN THE 3574 02:14:18,000 --> 02:14:20,000 MOMENT. 3575 02:14:20,000 --> 02:14:22,000 HUGELY UNPOPULAR, PROBABLY WHY 3576 02:14:22,000 --> 02:14:24,000 HE LOST IN 1976. 3577 02:14:24,000 --> 02:14:29,000 NOW LOOKED UPON AS ONE OF THE 3578 02:14:29,000 --> 02:14:30,000 BETTER DECISIONS C 3579 02:14:30,000 --> 02:14:31,000 PRESIDENTIAL HISTORY I THINK BY 3580 02:14:31,000 --> 02:14:33,000 MOST PEOPLE. 3581 02:14:33,000 --> 02:14:35,000 IF HE IS THINKING ABOUT IF I 3582 02:14:35,000 --> 02:14:37,000 GRANT THIS PARDON TO RICHARD 3583 02:14:37,000 --> 02:14:40,000 NIXON,OU I BE INVESTIGATED 3584 02:14:40,000 --> 02:14:41,000 MYSELF FOR OBSTRUCTION OF 3585 02:14:41,000 --> 02:14:42,000 JUSTICE ON THE THEORY THAT I'M 3586 02:14:42,000 --> 02:14:43,000 INTERFERING WITH THE 3587 02:14:43,000 --> 02:14:44,000 INVESTIGATION OFRD NIXON? 3588 02:14:44,000 --> 02:14:48,000 >> SO THIS WOULD FALL INTO THAT 3589 02:14:48,000 --> 02:14:49,000 SMALL CORE AREA THAT I MENTIOD 3590 02:14:49,000 --> 02:14:51,000 TO JUSTICE KAGAN OR JUSTICE 3591 02:14:51,000 --> 02:14:53,000 GORSUCH OF PRESIDENTIAL 3592 02:14:53,000 --> 02:14:54,000 POSSIBILITY THAT CONGRESS CANNOT 3593 02:14:54,000 --> 02:14:55,000 REGULATE. 3594 02:14:55,000 --> 02:14:57,000 >> HOW ABOUT PRESIDENT OBAMA'S 3595 02:14:57,000 --> 02:15:00,000 DRONE STRIKES? >> IF THE OFFICE OF LEGAL 3596 02:15:00,000 --> 02:15:02,000 COUNSELKED AT US. 3597 02:15:02,000 --> 02:15:04,000 CAREFULLY DETERMINED THAT NUMBER 3598 02:15:04,000 --> 02:15:06,000 E, THE FEDERAL MURDER STATE 3599 02:15:06,000 --> 02:15:08,000 DOES APPLY TO THE EXECUTIVE 3600 02:15:08,000 --> 02:15:10,000 BRANCH, THE PRESIDEN WOULD BE 3601 02:15:10,000 --> 02:15:11,000 PERSONALLY CARRYING OUT THE 3602 02:15:11,000 --> 02:15:12,000 STRAIGHT, BUT THE AIDIN 3603 02:15:12,000 --> 02:15:13,000 ABETTING LAWS ARE BROAD AND IT 3604 02:15:13,000 --> 02:15:14,000 IS DETERNETHAT A PUBLIC 3605 02:15:14,000 --> 02:15:16,000 AUTHORIT EXCEPTION THAT IS 3606 02:15:16,000 --> 02:15:19,000 BUILT IN STUS AND THAT 3607 02:15:19,000 --> 02:15:20,000 APPLIES PARTICULARLY TO THE 3608 02:15:20,000 --> 02:15:21,000 INVERTER STATUTE TALKSBO 3609 02:15:21,000 --> 02:15:24,000 UNLAWFUL KILLING NOT APPLY 3610 02:15:24,000 --> 02:15:26,000 TO THE DRONE STRIKE. 3611 02:15:26,000 --> 02:15:27,000 SO THIS IS ACTUALLY THE WAY THAT 3612 02:15:27,000 --> 02:15:30,000 THE SYSTEM CAN FUNCTION. 3613 02:15:30,000 --> 02:15:31,000 THE DEPARTMENT OF JUSTICE TAKES 3614 02:15:31,000 --> 02:15:34,000 IT RUNS THROUGH THE ANALYSIS. 3615 02:15:34,000 --> 02:15:36,000 VERY CAREFULLY WITH ESTABLISHED 3616 02:15:36,000 --> 02:15:37,000 PRCIES. 3617 02:15:37,000 --> 02:15:39,000 IT DOCUMTSHEM, EXPLAINS 3618 02:15:39,000 --> 02:15:41,000 THEM, AND THEN T PSIDENT CAN 3619 02:15:41,000 --> 02:15:45,000 GO FORWARD IN ACCORD. 3620 02:15:45,000 --> 02:15:47,000 >> THANK YOU FOR YOUR ANSWERS. 3621 02:15:47,000 --> 02:15:51,000 >> I WANT TO PICK UP WITH THAT 3622 02:15:51,000 --> 02:15:54,000 BLIC AUTHORITY DEFENSE. 3623 02:15:54,000 --> 02:15:55,000 I'M LOOKING AT THAT LLC MEMO 3624 02:15:55,000 --> 02:15:58,000 AT YOU CITED IN YOUR BRIEFS. 3625 02:15:58,000 --> 02:15:59,000 HE DESCRIBES THE PUBLIC 3626 02:15:59,000 --> 02:16:00,000 AUTHORITY DEFENSE SETTING E 3627 02:16:00,000 --> 02:16:02,000 MODEL PENAL CODE WITH A FEW 3628 02:16:02,000 --> 02:16:03,000 DIFFERENT DEFINITIONS, BUT I 3629 02:16:03,000 --> 02:16:07,000 WILL JUST HIGHLIGHT THIS ONE. 3630 02:16:07,000 --> 02:16:08,000 JUSTIFYING CONDUCT WHICH IS 3631 02:16:08,000 --> 02:16:11,000 REQUIRED OR AUTHORED BY THE 3632 02:16:11,000 --> 02:16:12,000 LAW DEFINING THE DUTIES OR 3633 02:16:12,000 --> 02:16:15,000 FUNCTIONS OF A PUBLIC OFFICER, 3634 02:16:15,000 --> 02:16:17,000 THE LAW GOVNI THE ARMED 3635 02:16:17,000 --> 02:16:18,000 SERVICES WERE LAWFUL CONDUCT OF 3636 02:16:18,000 --> 02:16:20,000 WAR, OR ANY OTHER PROVISION OF 3637 02:16:20,000 --> 02:16:23,000 LAW IMPOSING A PUBLIC DUTY. 3638 02:16:23,000 --> 02:16:26,000 THAT SOUNDS A LOT LIKE DIVIDING 3639 02:16:26,000 --> 02:16:27,000 A LINE BETWEEN OFFICIAL AND 3640 02:16:27,000 --> 02:16:28,000 PRIVATE CONDUCT. 3641 02:16:28,000 --> 02:16:31,000 I THINK IT IS NARROWEAN I 3642 02:16:31,000 --> 02:16:32,000 RECOGNIZE IT IS IN HIS DEFENSE, 3643 02:16:32,000 --> 02:16:33,000 BUT WHEN WE LOOK T 3644 02:16:33,000 --> 02:16:36,000 DEFINITION OF IT, ARE YOU ACTING 3645 02:16:36,000 --> 02:16:37,000 WITHIN THE SCOPE OF AUTHORITY 3646 02:16:37,000 --> 02:16:39,000 CONFERRED BY LAW, DIHAING A 3647 02:16:39,000 --> 02:16:42,000 DUTY CONFERRED BY LAW? 3648 02:16:42,000 --> 02:16:44,000 I THINIT IS NARROWER THAN 3649 02:16:44,000 --> 02:16:46,000 NIXON AND FITZGERALD, THAT IS WHAT IT SOUNDS LIKE TO M 3650 02:16:46,000 --> 02:16:47,000 DO YOU AGREE OR DISAGREE? 3651 02:16:47,000 --> 02:16:51,000 >> I CERTAINLY UNDERSTAND THE 3652 02:16:51,000 --> 02:16:52,000 INTUITION THAT WE ACT OUTSIDE OF 3653 02:16:52,000 --> 02:16:55,000 YOUR LAWFUL AUTHORITY, YOU KIND 3654 02:16:55,000 --> 02:16:57,000 OF BEEN NO LONGER CARRYING IT 3655 02:16:57,000 --> 02:16:59,000 OUT. I DON'T THINTH THAT QUITE 3656 02:16:59,000 --> 02:17:01,000 WORKS FOR PRESIDENTIAL ACTIVY. 3657 02:17:01,000 --> 02:17:03,000 THE ONLY WAY HE ULHAVE 3658 02:17:03,000 --> 02:17:05,000 IMPLEMENTED THE ORDERS IS BY 3659 02:17:05,000 --> 02:17:07,000 COMMANDER-IN-CHIEF AUTHORITY 3660 02:17:07,000 --> 02:17:10,000 OVER THE ARMED FORCES OR HIS 3661 02:17:10,000 --> 02:17:11,000 AUTHITTO SUPERVISE THE 3662 02:17:11,000 --> 02:17:12,000 EXECUTIVE BRANCH. 3663 02:17:12,000 --> 02:17:15,000 THOSE SM KE POOR EXECUTIVE 3664 02:17:15,000 --> 02:17:17,000 ASKED TO BE. THERE ISUCH A POSSIBILITY AS 3665 02:17:17,000 --> 02:17:20,000 AN UNLAWFUL EXECUTIVE ACT. 3666 02:17:20,000 --> 02:17:21,000 >> I'M NOT SU INDERSTAND 3667 02:17:21,000 --> 02:17:22,000 YOUR ANSWER. 3668 02:17:22,000 --> 02:17:24,000 IT SEEMS TO ME TT YOUR 3669 02:17:24,000 --> 02:17:26,000 BRIEF TODAY, WHEN YOU REFERRED 3670 02:17:26,000 --> 02:17:28,000 TO THE PUBLIC AUTHORITY DEFENSE, 3671 02:17:28,000 --> 02:17:30,000 THAT IS ONE OFHEUILT-IN 3672 02:17:30,000 --> 02:17:31,000 PROTECONOF WHY COMMUNITY IS 3673 02:17:31,000 --> 02:17:33,000 NOT CEARY. 3674 02:17:33,000 --> 02:17:35,000 E IN SOME OF THESE 3675 02:17:35,000 --> 02:17:36,000 INSTANCES, WHEN THE PRESIDENT 3676 02:17:36,000 --> 02:17:38,000 TAKES SUCHCTION THAT THE 3677 02:17:38,000 --> 02:17:40,000 COURTS ASKED MIGHT AS RESULT IN 3678 02:17:40,000 --> 02:17:41,000 CRIMINAL PROSECUTION, YOU SAY 3679 02:17:41,000 --> 02:17:43,000 WELL HE COULD RAISE THIS PUBLIC 3680 02:17:43,000 --> 02:17:45,000 AUTHORITY DEFENSE? 3681 02:17:45,000 --> 02:17:47,000 I'M SAYING ISN'T TH PLIC 3682 02:17:47,000 --> 02:17:48,000 AUTHORITY DEFENSE, IF RAISED, 3683 02:17:48,000 --> 02:17:50,000 DOESN'T IT SOUND LIKE A DENS 3684 02:17:50,000 --> 02:17:53,000 THAT SAYS WELL, AS AUTD BY 3685 02:17:53,000 --> 02:17:54,000 LAW, I TO DISCHARGE DYSFUNCTION? 3686 02:17:54,000 --> 02:17:56,000 >>NDHEREFORE I ACTED 3687 02:17:56,000 --> 02:17:57,000 LAWFULLY. 3688 02:17:57,000 --> 02:18:00,000 >> THEREFORE ACTED LAWFULLY AND 3689 02:18:00,000 --> 02:18:01,000 NOT CRIMINALLY LIABLE. 3690 02:18:01,000 --> 02:18:05,000 DID THAT INVOLVE A LOOK INTO 3691 02:18:05,000 --> 02:18:08,000 MOTIVES, KIND OF LIKE WHAT JUSTICE GORSUCH WAS ASKING? 3692 02:18:08,000 --> 02:18:09,000 COULD YOU SAY I WAS ACTING 3693 02:18:09,000 --> 02:18:10,000 WITHIN THE SCOPE OF MY AUTHORITY 3694 02:18:10,000 --> 02:18:12,000 BY GRANTING AARN, REMOVING A 3695 02:18:12,000 --> 02:18:15,000 CABINET OFFICER, BUT THEN THE 3696 02:18:15,000 --> 02:18:16,000 PUBLIC AUTHORITY DEFENSE MIGHT 3697 02:18:16,000 --> 02:18:17,000 NOT APPLY BECAUSE YOU HAD A B 3698 02:18:17,000 --> 02:18:20,000 MOTIVE IN DOING SO? >> I DON'T THINK SOICE 3699 02:18:20,000 --> 02:18:21,000 BARRETT. 3700 02:18:21,000 --> 02:18:23,000 I THINK AND OPERATE ON OBJECTIVE 3701 02:18:23,000 --> 02:18:26,000 FACTS DISCLOSED TO COUNSEL, IN 3702 02:18:26,000 --> 02:18:29,000 THIS CASE THE DEPAME OF 3703 02:18:29,000 --> 02:18:30,000 JUSTICE, AND IT IS AN 3704 02:18:30,000 --> 02:18:32,000 OBJECTIVELY VALIDEFSE, A 3705 02:18:32,000 --> 02:18:34,000 COMPLETE DEFENSE TO PROSECUTIO 3706 02:18:34,000 --> 02:18:37,000 THING THAT STRIKES ME AS 3707 02:18:37,000 --> 02:18:38,000 DIFFERENT, FOR ONE THING THAT IS 3708 02:18:38,000 --> 02:18:39,000 OBVIOUSLY DIFFERENT BETWEEN THE 3709 02:18:39,000 --> 02:18:40,000 PUBLIC AUTHORI DEFENSE AND 3710 02:18:40,000 --> 02:18:42,000 IMMUNITY AND THE INTERLOCKING 3711 02:18:42,000 --> 02:18:43,000 APPEAL AND HAVING IT RESOLVED AT 3712 02:18:43,000 --> 02:18:44,000 THE OUTSET. 3713 02:18:44,000 --> 02:18:47,000 WHAT WOULD BE SO BAD ABOUT 3714 02:18:47,000 --> 02:18:48,000 HAVING A QUESTION LIKE THAT 3715 02:18:48,000 --> 02:18:49,000 RELTT THE THRESHOLD OF 3716 02:18:49,000 --> 02:18:51,000 HAVING THE AND IMMUNITY? 3717 02:18:51,000 --> 02:18:52,000 THSAME TIME TO QUESTION THEY 3718 02:18:52,000 --> 02:18:55,000 COULD BE BROUGHT UP AS A 3719 02:18:55,000 --> 02:18:57,000 THRESHOLD AND THEN IT 3720 02:18:57,000 --> 02:19:00,000 INTERLOCKING APPEAL WOULD BE A 3721 02:19:00,000 --> 02:19:03,000 FREEDOM FROM STANDING TRIAL, BUT 3722 02:19:03,000 --> 02:19:07,000 NOT A GET OUT OFFREE CARD. >> I UNDERSTAND THAT. 3723 02:19:07,000 --> 02:19:09,000 IF T CRT BELIEVE THAT THAT 3724 02:19:09,000 --> 02:19:11,000 WITH THE APPROPRIATE WAY 3725 02:19:11,000 --> 02:19:13,000 CRAFT PRESIDENTIAL PROTECTIONS, 3726 02:19:13,000 --> 02:19:15,000 IT HAS THE AUTHORITY TO CRAFT 3727 02:19:15,000 --> 02:19:17,000 PROCEDURAL RULES THAT IMPLEMENT 3728 02:19:17,000 --> 02:19:21,000 ITS ARTICLE TWO CONCERNS. 3729 02:19:21,000 --> 02:19:25,000 THAT SAID, PUBLIC AUTHORITY, WE 3730 02:19:25,000 --> 02:19:26,000 ARE CALLING A DEFENSE, BUT 3731 02:19:26,000 --> 02:19:27,000 UNDER MANY STATE ACTUALLY 3732 02:19:27,000 --> 02:19:30,000 AN EXCEPTION TO LIABILITY SELF. 3733 02:19:30,000 --> 02:19:32,000 WHAT Y A REALLY TALKING 3734 02:19:32,000 --> 02:19:34,000 ABOUT IS TRYING THE GENERAL ISSUE. 3735 02:19:34,000 --> 02:19:37,000 GENERALLY, IN CRIMINAL CASES, 3736 02:19:37,000 --> 02:19:38,000 EVENAS THAT INVOLVE FIRST 3737 02:19:38,000 --> 02:19:42,000 AMENDMENT ISSUES LIKE THREAT 3738 02:19:42,000 --> 02:19:43,000 STATUTES, THE JURY IS THE 3739 02:19:43,000 --> 02:19:44,000 DETERMINANT OF FACTS. 3740 02:19:44,000 --> 02:19:46,000 AND I HAVE A LITTLE BIT OF 3741 02:19:46,000 --> 02:19:48,000 DIFFICULTY WITH THE IDEA OF 3742 02:19:48,000 --> 02:19:49,000 TRYING THE WHOLE PUBLIC 3743 02:19:49,000 --> 02:19:51,000 AUTHORITY ISSUE SEPARATELY TO 3744 02:19:51,000 --> 02:19:54,000 THE JUDGE AND HAVING THAT GO UP 3745 02:19:54,000 --> 02:19:56,000 ON INTERLOCKING AEAL BEFORE 3746 02:19:56,000 --> 02:20:00,000 YOU COULD GET INTO A CRIMINAL 3747 02:20:00,000 --> 02:20:05,000 CASE. 3748 02:20:14,000 --> 02:20:16,000 I WOULD RATHER THAT TN TOTAL 3749 02:20:16,000 --> 02:20:17,000 ABSOLUTE BLANKET IMMUNITY THAT 3750 02:20:17,000 --> 02:20:18,000 TAKES AWAY THE POSSIBILITY OF 3751 02:20:18,000 --> 02:20:20,000 CRIMINAL PROSECUTION, EVEN IF IT 3752 02:20:20,000 --> 02:20:23,000 IS A CORE VIOLATION OF THE 3753 02:20:23,000 --> 02:20:25,000 STATUTE OF ATTORNEY GENERAL 3754 02:20:25,000 --> 02:20:26,000 ADVICE AND HAS NO OVERRIDING 3755 02:20:26,000 --> 02:20:28,000 PUBLIC AUTHORITY. 3756 02:20:28,000 --> 02:20:30,000 >> I WASN'T NECESSARILY 3757 02:20:30,000 --> 02:20:32,000 PROPOSINACALLY TREATING IT 3758 02:20:32,000 --> 02:20:34,000 AS A DEFENSE THAT WAS GOING TO 3759 02:20:34,000 --> 02:20:37,000 BE OUTSIDE AND SUBJECT TO 3760 02:20:37,000 --> 02:20:39,000 APALI WAS PROPOSING WHAT 3761 02:20:39,000 --> 02:20:40,000 ABOUT AND IMMUNITY DOCTRINE A 3762 02:20:40,000 --> 02:20:42,000 TRUE FROM THE PUBLIC AUTHORITY 3763 02:20:42,000 --> 02:20:43,000 DEFENSE OF THE DEPARTMENOF 3764 02:20:43,000 --> 02:20:45,000 JUSTICE THAT THEY THINK WOULD OTHERWISE PL 3765 02:20:45,000 --> 02:20:46,000 SO JUST GO WITH ME ON THAT FOR A 3766 02:20:46,000 --> 02:20:48,000 MINUTE. 3767 02:20:48,000 --> 02:20:49,000 WHY WOULD IT BE BAD FOR IT 3768 02:20:49,000 --> 02:20:52,000 NOT TO BE A JURY QUESTION? THERE 3769 02:20:52,000 --> 02:20:54,000 IT SEEMS TO ME SOME OF THESE 3770 02:20:54,000 --> 02:20:55,000 CONCERNS WOULD BE EXACERBATED BY 3771 02:20:55,000 --> 02:20:56,000 HAVING I GO TO A JURY RATHER 3772 02:20:56,000 --> 02:20:58,000 THAN A JUDGE. 3773 02:20:58,000 --> 02:21:00,000 >> I THINK SOME OF THEMRE 3774 02:21:00,000 --> 02:21:02,000 JUDGE QUESTIONS THAT COULD BE 3775 02:21:02,000 --> 02:21:03,000 RESOLVED IN THE FACE OF THE 3776 02:21:03,000 --> 02:21:05,000 INDICTMENT. 3777 02:21:05,000 --> 02:21:06,000 IF THE DEPARTMENT OF JUSTICE 3778 02:21:06,000 --> 02:21:07,000 EVER RETURNED AN INDICTMENT THAT 3779 02:21:07,000 --> 02:21:08,000 SAID TUANCE OF THIS PARDON 3780 02:21:08,000 --> 02:21:11,000 OR THIS SERIES OF PARDONS 3781 02:21:11,000 --> 02:21:12,000 CONSTITUTED OBSTRUCTION OF 3782 02:21:12,000 --> 02:21:16,000 JUSTICE, I HAVE A LITTLE 3783 02:21:16,000 --> 02:21:18,000 DIFFICULTY HYPOTHESIZING IT, BUT 3784 02:21:18,000 --> 02:21:19,000 A MOTION TO BE MADE ON THE FACE 3785 02:21:19,000 --> 02:21:20,000 OF THE INDICTMENT THIS 3786 02:21:20,000 --> 02:21:23,000 ARTICLE TWO INCLUDES CONGRESS 3787 02:21:23,000 --> 02:21:24,000 FROM REGULAR THINGS ACTIVITIES, 3788 02:21:24,000 --> 02:21:25,000 THE DIED NEEDS TO BE 3789 02:21:25,000 --> 02:21:26,000 DISMISSED. 3790 02:21:26,000 --> 02:21:27,000 IF THE COURT WISHED TO ATTH 3791 02:21:27,000 --> 02:21:31,000 THAT KIND OF A RULE INTERLOCUTOR 3792 02:21:31,000 --> 02:21:36,000 HE APPEAL, THAWOD BE A 3793 02:21:36,000 --> 02:21:38,000 LEER SAFEGUARD THAN THE ONE 3794 02:21:38,000 --> 02:21:39,000 THAT MY FRIEND IS PROPOSING 3795 02:21:39,000 --> 02:21:42,000 HERE. 3796 02:21:42,000 --> 02:21:44,000 OTR NDS OF DEFENSES REALLY 3797 02:21:44,000 --> 02:21:49,000 IERSECT WITH THE GENERAL MUCH GREATER TIMSENG HOW THE 3798 02:21:50,000 --> 02:21:52,000 COURTS COULD IMPLEMENT THAT. 3799 02:21:52,000 --> 02:21:54,000 WITH EVERY COST INTO TRIAL? 3800 02:21:54,000 --> 02:21:56,000 YES, THERE IS NO PERFECT SYSTEM 3801 02:21:56,000 --> 02:21:57,000 HERE. 3802 02:21:57,000 --> 02:21:59,000 WE'RE TRYING TO DESIGN A SYSTE 3803 02:21:59,000 --> 02:22:00,000 THAT PRESERVES THE EFFECTIVE 3804 02:22:00,000 --> 02:22:02,000 FUNCTIONING OF THE PSINCY 3805 02:22:02,000 --> 02:22:03,000 AND THE ACCOUNTABILITY OF A 3806 02:22:03,000 --> 02:22:06,000 FORMER PRESIDENT UNDER THE RE OF LAW. 3807 02:22:06,000 --> 02:22:09,000 AND THE PERFECT SYSTEM THAT CALIBRATES ALL OF THOSE VALUES 3808 02:22:09,000 --> 02:22:11,000 PROBABLY HASOTEEN DEVISED. 3809 02:22:11,000 --> 02:22:12,000 I THINK THAT THE SYSTEM THAT WE 3810 02:22:12,000 --> 02:22:14,000 VEORKS PRETTY WELL, MAYBE IT 3811 02:22:14,000 --> 02:22:16,000 NEEDS A FEW ANCILLARY RULES. 3812 02:22:16,000 --> 02:22:19,000 EVEN DIFFERENT FROM THE RADICAL 3813 02:22:19,000 --> 02:22:20,000 PROPOSAL. 3814 02:22:20,000 --> 02:22:22,000 >> I AGREE. 3815 02:22:22,000 --> 02:22:24,000 THAT ME ASK YOU STATE 3816 02:22:24,000 --> 02:22:25,000 PROSECUTIONS BECAUSE IF THE 3817 02:22:25,000 --> 02:22:27,000 PRESIDENT HAD SOD OF 3818 02:22:27,000 --> 02:22:28,000 TY THAT IS IMPLICIT IN 3819 02:22:28,000 --> 02:22:30,000 ARTICLE TWO, AND THAT IMMUNITY 3820 02:22:30,000 --> 02:22:33,000 WOULD PROTECT HIM FROM STATE 3821 02:22:33,000 --> 02:22:34,000 PROSECUTION AS WELL. 3822 02:22:34,000 --> 02:22:37,000 A LOT OF THE PROTECTIONS WERE 3823 02:22:37,000 --> 02:22:38,000 TALKING ABOUT OUR INTERNAL PROTECTIONS TH FEDERAL 3824 02:22:38,000 --> 02:22:42,000 GOVERNMENT HAS, PROTECTIONS AND 3825 02:22:42,000 --> 02:22:43,000 THE PARTNEICE WHICH 3826 02:22:43,000 --> 02:22:46,000 OBVIOUSLY ARE NOT APPE AT 3827 02:22:46,000 --> 02:22:47,000 THEANY STATE AND LOCAL 3828 02:22:47,000 --> 02:22:48,000 JURISDICTIONS ACROSS THE 3829 02:22:48,000 --> 02:22:49,000 COUNTRY. 3830 02:22:49,000 --> 02:22:51,000 WHAT DO YOU HAVE TO SAY TO THAT? 3831 02:22:51,000 --> 02:22:55,000 >> THE COURT WOULD RUN A 3832 02:22:55,000 --> 02:22:56,000 SUPREMACY CLAUSE ANALYSIS THAT 3833 02:22:56,000 --> 02:22:59,000 WOULD PROBABLY START WITH BASIC 3834 02:22:59,000 --> 02:23:00,000 PRINCIPLES LIKE MCCULLOCH VERSUS 3835 02:23:00,000 --> 02:23:02,000 MARYLAND 3836 02:23:02,000 --> 02:23:03,000 THE STATES DO NOTTHE 3837 02:23:03,000 --> 02:23:05,000 AUTHORITY TO BETTER ASHBURTON 3838 02:23:05,000 --> 02:23:07,000 FEDERALUMPTIONS AND THEN 3839 02:23:07,000 --> 02:23:08,000 WOULD F MOVE THROUGH AND 3840 02:23:08,000 --> 02:23:11,000 WHEN NAGEL WHERE THE COURT SAID 3841 02:23:11,000 --> 02:23:13,000 THAT A STATE MURDER PROSECUTION 3842 02:23:13,000 --> 02:23:15,000 OF A FEDERAL OFFICIAL GUARDING 3843 02:23:15,000 --> 02:23:16,000 THE SUPREME COURICE AND 3844 02:23:16,000 --> 02:23:17,000 WHO FIRED A SHOT WAS NO 3845 02:23:17,000 --> 02:23:20,000 PERMISSIBLE. 3846 02:23:20,000 --> 02:23:21,000 IF THE COURT THOUGHT THAT YOU 3847 02:23:21,000 --> 02:23:24,000 EDED A MORE CATEGORICAL RULE 3848 02:23:24,000 --> 02:23:25,000 FOR THE STATES, I THINK THE 3849 02:23:25,000 --> 02:23:26,000 SUPREMACYLAE CERTAINLY 3850 02:23:26,000 --> 02:23:30,000 LEAVES IT WITHIN THE COURTS 3851 02:23:30,000 --> 02:23:31,000 PRERATE TO DETERMINE THAT 3852 02:23:31,000 --> 02:23:33,000 THE PRESIDENT, UNLIKE ALL OTHER 3853 02:23:33,000 --> 02:23:35,000 OFFICIALS, DESERVES MORE OF A 3854 02:23:35,000 --> 02:23:36,000 ROBUST FEDERAL DEFENSE THAN WHAT 3855 02:23:36,000 --> 02:23:38,000 I HAVE JUST DEVISED. 3856 02:23:38,000 --> 02:23:39,000 >> BUT IT WOULD STILL BE A 3857 02:23:39,000 --> 02:23:41,000 DEFENSE. 3858 02:23:41,000 --> 02:23:43,000 THAT IS MY POIN 3859 02:23:43,000 --> 02:23:46,000 IT IS ONE THING TO SAY THE 3860 02:23:46,000 --> 02:23:47,000 PRESIDENT, THEY ARE NOT GOING TO 3861 02:23:47,000 --> 02:23:49,000 BE THESE PSECUTIONS THAT WERE 3862 02:23:49,000 --> 02:23:51,000 POLITICALLY MOTIVATED THAT MIGHT 3863 02:23:51,000 --> 02:23:55,000 BE THE DANGER OF THE SYSTEM. 3864 02:23:55,000 --> 02:23:57,000 THAT MIGHT NOT CAR THE DAY, 3865 02:23:57,000 --> 02:23:59,000 BUT THAT IS A CONCER 3866 02:23:59,000 --> 02:24:02,000 TOTALLY DIFFERENT WHEN YOU TAKE 3867 02:24:02,000 --> 02:24:03,000 IT OUTDEHE DEPARTMENT OF 3868 02:24:03,000 --> 02:24:07,000 JUSTICE AND ITS STRUCTURES AND THEN YOU THROW IT OUT ELSEWHERE. 3869 02:24:07,000 --> 02:24:09,000 THE IDEA OF AN IMMUNITY I THINK 3870 02:24:09,000 --> 02:24:11,000 HAS A LOMO PURCHASE IF YOU 3871 02:24:11,000 --> 02:24:12,000 ARE TALKING ABOUT SOMETHING THAT PROTECTS THE FORMER PRESIDENT 3872 02:24:12,000 --> 02:24:14,000 FROM STANDING TRIAL AT A STATE 3873 02:24:14,000 --> 02:24:17,000 AND LOCAL LEVEL. 3874 02:24:17,000 --> 02:24:19,000 >> SO I DON' THAT YOU 3875 02:24:19,000 --> 02:24:20,000 WOULD HAVE TO DESIGN AYSM IN 3876 02:24:20,000 --> 02:24:21,000 WHICH THE PRESIDENT WOULD HE 3877 02:24:21,000 --> 02:24:22,000 TO STAND TRIAL AT THE STATE AND 3878 02:24:22,000 --> 02:24:25,000 IT ICEAINLY WITHIN THE 3879 02:24:25,000 --> 02:24:26,000 COURTS AUTRI AS A MATTER OF 3880 02:24:26,000 --> 02:24:28,000 SUPREMACY CLAUSE LAWO ND AND 3881 02:24:28,000 --> 02:24:31,000 IMMUNITY. 3882 02:24:31,000 --> 02:24:33,000 BUT WE HAVE BEEN TALKING HER 3883 02:24:33,000 --> 02:24:35,000 ABOUT THE DISTINCTION BETWEEN 3884 02:24:35,000 --> 02:24:37,000 OFFICIAL ACTS AND PRIVATE ACTS. 3885 02:24:37,000 --> 02:24:39,000 THAT WILL HAVE TO BE DETERMINED 3886 02:24:39,000 --> 02:24:41,000 BY SOME RTF A PROCESS. 3887 02:24:41,000 --> 02:24:42,000 ANY IMMUNITY DEFENSE THAT THE 3888 02:24:42,000 --> 02:24:45,000 COT ANNOUNCES CAN STILL BE MET 3889 02:24:45,000 --> 02:24:48,000 BY A STAERTION THA WE ARE 3890 02:24:48,000 --> 02:24:50,000 PROSECUTING PR CONDUCT, YOU 3891 02:24:50,000 --> 02:24:53,000 ARGOG TO HAVE TO HAVE SOME PROCESS. 3892 02:24:53,000 --> 02:24:57,000 HANGOME LEGAL PROCESS IS NOT A REASON TO CASTSI A NUANCED 3893 02:24:57,000 --> 02:24:58,000 SYSTEM TT ACTUALLY LOOKS AT 3894 02:24:58,000 --> 02:25:01,000 WHAT PROTECTIONS ARE NECESSARY 3895 02:25:01,000 --> 02:25:02,000 AS OPPOSED TO WHAT WOULD PROVIDE 3896 02:25:02,000 --> 02:25:05,000 THE ABSOLUTE MAXIMUM INSULATION 3897 02:25:05,000 --> 02:25:08,000 FOR FORMER PRESIDENT, EVEN IF WE 3898 02:25:08,000 --> 02:25:09,000 ACKNOWLEDGE THAT IT IS HIGHLY 3899 02:25:09,000 --> 02:25:12,000 PROPHYLACT. >> TOTALLY AGREE AND IT WASN' 3900 02:25:12,000 --> 02:25:13,000 CONTRASTING THE ABSOLUTE 3901 02:25:13,000 --> 02:25:15,000 IMMUNITY RULE, BUT SAYING 3902 02:25:15,000 --> 02:25:17,000 THERE IS SOME SORT OF 3903 02:25:17,000 --> 02:25:18,000 CONSEQUENCE WERE MAKING 3904 02:25:18,000 --> 02:25:19,000 IMMUNITY. 3905 02:25:19,000 --> 02:25:20,000 AND SINCE YOU BRING UP THE 3906 02:25:20,000 --> 02:25:21,000 PRIVATE ACT THIS IS MY LAST 3907 02:25:21,000 --> 02:25:22,000 QUESTION 3908 02:25:22,000 --> 02:25:27,000 I HAD ASKED ON PAGE 46 AND 47, 3909 02:25:29,000 --> 02:25:31,000 YOU Y EVEN IF THE COURT WERE 3910 02:25:31,000 --> 02:25:33,000 INCLINED TO RECOGNIZE SOME IMMUNITY FOR A FORMER 3911 02:25:33,000 --> 02:25:35,000 PRESIDENT'S OFFICIAL AC, E 3912 02:25:35,000 --> 02:25:38,000 INDICTMENT ALLEGES THE POTENAL 3913 02:25:38,000 --> 02:25:39,000 PRIVATE CONDUCT AND YOU SAID 3914 02:25:39,000 --> 02:25:40,000 THAT THE PRIVATE CONCTOULD 3915 02:25:40,000 --> 02:25:42,000 BE SUFFICIENT. 3916 02:25:42,000 --> 02:25:44,000 THE SPECIAL COUNSEL HAS PRESSED SOME CCERN IN 3917 02:25:44,000 --> 02:25:46,000 WANTING TO MOVE FORWARD. 3918 02:25:46,000 --> 02:25:50,000 THE NORMAL PROCESS WOULD BE FOR 3919 02:25:50,000 --> 02:25:52,000 US TO REMAND IF WE DECID THAT 3920 02:25:52,000 --> 02:25:54,000 THERE WERE SOME OFFICIAL ACTS 3921 02:25:54,000 --> 02:25:56,000 ANTO LET THAT BE SORTED OUT 3922 02:25:56,000 --> 02:25:58,000 BELOW. 3923 02:25:58,000 --> 02:25:59,000 IT IS ANOTHER OPTION FOR THE 3924 02:25:59,000 --> 02:26:01,000 SPECIAL COUNSEL TO JUST PROCEED 3925 02:26:01,000 --> 02:26:03,000 BASED ON THE PRIVATE CONDUCT AND 3926 02:26:03,000 --> 02:26:04,000 DROP THE OFFICIAL CDU. 3927 02:26:04,000 --> 02:26:07,000 >> TWO THINGS ON THAT. 3928 02:26:07,000 --> 02:26:09,000 FIRST OF ALL, THERE'S REALLY AN 3929 02:26:09,000 --> 02:26:11,000 GRATED CONSPIRACY HERE THAT 3930 02:26:11,000 --> 02:26:12,000 HAS DIFFERENT COMPONENTS AS 3931 02:26:12,000 --> 02:26:14,000 ALLEGED IN THE INDTMT. 3932 02:26:14,000 --> 02:26:15,000 WORKING WITH PRIVATE LAWYERS TO 3933 02:26:15,000 --> 02:26:20,000 ACHIEVE E GOALS, AND AS I SAI 3934 02:26:20,000 --> 02:26:23,000 BEFORE, REACHG R OFFICIAL 3935 02:26:23,000 --> 02:26:25,000 POWERS TO TRY TO MAKE THE 3936 02:26:25,000 --> 02:26:28,000 CONSPIRACIES MORE LIKELY TO SUCCEED. 3937 02:26:28,000 --> 02:26:29,000 WE WOULD LIKEO ESENT THAT AS 3938 02:26:29,000 --> 02:26:30,000 AN INTEGRATED PICTURE TO THE 3939 02:26:30,000 --> 02:26:33,000 JURY SO THAT IT SEES THE 3940 02:26:33,000 --> 02:26:34,000 SEQUCEND THE GRAVITY OF THE 3941 02:26:34,000 --> 02:26:35,000 CONDUCT AND WHY EACH STE 3942 02:26:35,000 --> 02:26:37,000 OCCURRED. 3943 02:26:37,000 --> 02:26:38,000 THAT SAID, IF THE CORPORATE TO 3944 02:26:38,000 --> 02:26:43,000 SAY THAT THE ELECTOR SEM 3945 02:26:43,000 --> 02:26:45,000 PRIVATE, REACHING OUT TO STATE OFFICIALS AS A CANDIDA I 3946 02:26:45,000 --> 02:26:47,000 PRIVATE,RYG TO EXPLOIT THE 3947 02:26:47,000 --> 02:26:50,000 VIOLENCE AFTER JANUARY 6 BY 3948 02:26:50,000 --> 02:26:51,000 CALLING SENATORS AND SAYING 3949 02:26:51,000 --> 02:26:56,000 PLEASE DELAY THE CERTIFICATION PREEDING IS PVATE, WE STILL 3950 02:26:56,000 --> 02:26:57,000 INKINDS WRITE WHAT MY FRIEND 3951 02:26:57,000 --> 02:26:59,000 ID THAT WE COULD INTRODUCEHE 3952 02:26:59,000 --> 02:27:01,000 ACTIONS OF THE JUSTICE 3953 02:27:01,000 --> 02:27:02,000 DEPARTMENT, THE EFFORT 3954 02:27:02,000 --> 02:27:05,000 PRESSURE THE VICE PRESIDENT 3955 02:27:05,000 --> 02:27:06,000 FURTHEEVENTIARY VALUE AS 3956 02:27:06,000 --> 02:27:10,000 FILLING THE DEFENDANT'S 3957 02:27:10,000 --> 02:27:11,000 KNOWLEDGE AND INTENT AND WE WOULD TAKE A JURYNSUCTION 3958 02:27:11,000 --> 02:27:13,000 THAT WOULD SAY YOU MAY NOT 3959 02:27:13,000 --> 02:27:16,000 IMPOSE CRIMINA CULPABILITY FOR 3960 02:27:16,000 --> 02:27:19,000 THE ACTIONS THAT HE TOOK, 3961 02:27:19,000 --> 02:27:20,000 HOWEVER Y M CONSIDER IT 3962 02:27:20,000 --> 02:27:21,000 INSOFAR AS IT BEARS ON KNOWLEDGE 3963 02:27:21,000 --> 02:27:22,000 AND INTENT. 3964 02:27:22,000 --> 02:27:24,000 THAT ITHE USUAL RULE WITH 3965 02:27:24,000 --> 02:27:25,000 ECTED SPEECH, UNDER 3966 02:27:25,000 --> 02:27:28,000 WISCONSIN V. MITCHELL. 3967 02:27:28,000 --> 02:27:30,000 MY FRIEND ANALOGIZE THIS AS A 3968 02:27:30,000 --> 02:27:32,000 SPCH FOR DEBATE CLAUSE BUT WE 3969 02:27:32,000 --> 02:27:33,000 DON'T THINK THE SPEECH FOR 3970 02:27:33,000 --> 02:27:34,000 DEBATE CAUSES Y PLICABILITY 3971 02:27:34,000 --> 02:27:35,000 HERE. 3972 02:27:35,000 --> 02:27:38,000 IT IS A VERY EXPLICIT 3973 02:27:38,000 --> 02:27:39,000 CONSTITUTIALROTECTION THAT SAYS SENATORS AND 3974 02:27:39,000 --> 02:27:40,000 REESTATIVES SHALL NOT BE 3975 02:27:40,000 --> 02:27:42,000 QUESTIONED IN ANY OTHER PLACE, 3976 02:27:42,000 --> 02:27:43,000 SO IT CARRIES AN EVIDENTIARY 3977 02:27:43,000 --> 02:27:44,000 COMPONENT THAT IS ABOVE AND 3978 02:27:44,000 --> 02:27:47,000 BEYOND WHATEVER OFFICIAL 3979 02:27:47,000 --> 02:27:49,000 IMMUNITY HE IS SEEKING. 3980 02:27:49,000 --> 02:27:51,000 AND THE LAST THING I WOULD 3981 02:27:51,000 --> 02:27:52,000 ON THIS AS WE THINK THAT THE 3982 02:27:52,000 --> 02:27:53,000 CONCERNS OF THE USE OF EVIDENCE 3983 02:27:53,000 --> 02:27:55,000 OF PSINTIAL CONDUCT THAT 3984 02:27:55,000 --> 02:27:56,000 MIGHT OTHERSEE OFFICIAL AND 3985 02:27:56,000 --> 02:27:58,000 SUBJECT TO EXECUTIVE PRIVILEGE 3986 02:27:58,000 --> 02:27:59,000 IS ALREADY TAKEN CARE OF BY 3987 02:27:59,000 --> 02:28:03,000 IT STATES V. NIXON. 3988 02:28:03,000 --> 02:28:04,000 THAT BALANCES THE INTEREST AND 3989 02:28:04,000 --> 02:28:05,000 COMFORT- COMPANY GEOLOGY 3990 02:28:05,000 --> 02:28:06,000 AGAINST THE NEED OF THE JUDICIAL 3991 02:28:06,000 --> 02:28:08,000 SYEM FOR ALL AVAILABLE FACTS 3992 02:28:08,000 --> 02:28:11,000 TO GET TO THE TRUTH, AND ONCE 3993 02:28:11,000 --> 02:28:13,000 THAT HAS BEEN OVERCOME, WE 3994 02:28:13,000 --> 02:28:14,000 SUBMIT THE EVIDENCE CAN BE USED 3995 02:28:14,000 --> 02:28:15,000 EVEN IF CULPABILITY CAN'T REST 3996 02:28:15,000 --> 02:28:16,000 ON IT. 3997 02:28:16,000 --> 02:28:20,000 >> JUST TO PICK UP WHERE JUSTICE 3998 02:28:20,000 --> 02:28:21,000 BAETT LEFT OFF, I THINK I 3999 02:28:21,000 --> 02:28:23,000 HEARD YOU SAY THAT EVEN IF WE 4000 02:28:23,000 --> 02:28:27,000 DEDE HERE A RULE THAT IS NOT 4001 02:28:27,000 --> 02:28:30,000 THE RULE THAT YOU PREFER THAT IS 4002 02:28:30,000 --> 02:28:32,000 SOMEHOW SEPARATING OUT PRIVATE 4003 02:28:32,000 --> 02:28:35,000 FROM ACTS AND SAYING ATHAT 4004 02:28:35,000 --> 02:28:37,000 SHOULD APPLY HERE, THERE IS 4005 02:28:37,000 --> 02:28:40,000 SUFFICIENT ALLEGATIONS IN THE 4006 02:28:40,000 --> 02:28:43,000 INDICTMENT, IN THE GOVERNMENT'S 4007 02:28:43,000 --> 02:28:44,000 VIEW, THAT FALLNTO THE PRIVATE 4008 02:28:44,000 --> 02:28:45,000 ACTS BUCKET THAT THE CASE SHOULD 4009 02:28:45,000 --> 02:28:48,000 BELLOWED TO PROCEED, CORRECT? 4010 02:28:48,000 --> 02:28:50,000 BECAUSE IN AN ORDINARY CASE, IT 4011 02:28:50,000 --> 02:28:52,000 WOULDN'T BE STOEDUST BECAUSE 4012 02:28:52,000 --> 02:28:55,000 ME OF THE ACTS ARE ALLEGED 4013 02:28:55,000 --> 02:28:56,000 IMMUNIZED, EVEN IF PEOPLE AGREE 4014 02:28:56,000 --> 02:28:58,000 ATOME ARE IMMUNIZED. 4015 02:28:58,000 --> 02:28:59,000 IF THERE ARE OTHER ACTS THAT 4016 02:28:59,000 --> 02:29:00,000 AREN'T, THE CASE WOULD GO 4017 02:29:00,000 --> 02:29:04,000 FORWARD. 4018 02:29:04,000 --> 02:29:06,000 GOING BACK TO THE CLEAR 4019 02:29:06,000 --> 02:29:11,000 STATEMENT ARGUMENT, MY 4020 02:29:11,000 --> 02:29:16,000 UNDETAING WAS THAT WHEN A 4021 02:29:16,000 --> 02:29:17,000 CHARGED CRIMINAL STATUTE IS READ 4022 02:29:17,000 --> 02:29:18,000 NARROWLY IN E ESIDENTIAL 4023 02:29:18,000 --> 02:29:21,000 CONTEXT DID NOT APPLY TO THE 4024 02:29:21,000 --> 02:29:25,000 PRESIDENT, A CONSTITUTIONAL QUESTI IBEING AVOIDED. 4025 02:29:25,000 --> 02:29:26,000 YOU ARE DOING THAT TO AVOID 4026 02:29:26,000 --> 02:29:27,000 HAVING TO DEAL WITH THE 4027 02:29:27,000 --> 02:29:29,000 CONSTITUTIONAL QUESTION. 4028 02:29:29,000 --> 02:29:31,000 WHAT IS THE CONSTITUTIONAL 4029 02:29:31,000 --> 02:29:34,000 QUESTION THAT IS BEING AVOIDED? 4030 02:29:34,000 --> 02:29:38,000 >> THIS IS JUST AN APPLICATION 4031 02:29:38,000 --> 02:29:40,000 OF THIS COURT ORDINARY 4032 02:29:40,000 --> 02:29:41,000 COTRUCTION OF CRIMINAL STATUTE 4033 02:29:41,000 --> 02:29:43,000 ATF THERE IS AN AVAILABLE 4034 02:29:43,000 --> 02:29:45,000 INTERPRETATION THAT WOULD AVOID 4035 02:29:45,000 --> 02:29:46,000 A SERIOUS CONSTITUTIONAL 4036 02:29:46,000 --> 02:29:47,000 QUESTION, THE COURT PREFERENCE 4037 02:29:47,000 --> 02:29:48,000 IS TO -- 4038 02:29:48,000 --> 02:29:53,000 >> MY UNDERSTANDING IS THAT WHAT 4039 02:29:53,000 --> 02:29:54,000 IS BEING AVOIDED I 4040 02:29:54,000 --> 02:29:55,000 SITUATIOISHE QUESTION OF 4041 02:29:55,000 --> 02:29:58,000 WHETHER A FORMER PRESIDENT C 4042 02:29:58,000 --> 02:30:00,000 BE HELD CRIMINALLY LIABLE FOR 4043 02:30:00,000 --> 02:30:04,000 DOING THE ALLEGED ACT THAT IS 4044 02:30:04,000 --> 02:30:05,000 BEING ASSERTED IN THAT STATUTE 4045 02:30:05,000 --> 02:30:07,000 CONSISTENT WITH THE CONSTITUTION. 4046 02:30:07,000 --> 02:30:09,000 HAS GOTTEN ELEMENTS IN IT AND WE 4047 02:30:09,000 --> 02:30:12,000 ARE SAYING IF THIS STATUTE AND 4048 02:30:12,000 --> 02:30:16,000 THOSE ELEMENTS APPLIED TO THE 4049 02:30:16,000 --> 02:30:18,000 PRESIDENT'S CONDUCT IN THE 4050 02:30:18,000 --> 02:30:20,000 SITUATION, WE HAVE TO ANSWER THE 4051 02:30:20,000 --> 02:30:22,000 QUESTION IN THE PRESIDENT BE 4052 02:30:22,000 --> 02:30:23,000 HELD LIABLE CONSISTENT WITH THE 4053 02:30:23,000 --> 02:30:25,000 TITUTION FOR THAT? 4054 02:30:25,000 --> 02:30:30,000 >> THE FIRST STEP IN THE 4055 02:30:30,000 --> 02:30:35,000 ANALYSIS, THERE'S NO AMBIGUITY 4056 02:30:40,000 --> 02:30:41,000 IN THOSE. 4057 02:30:41,000 --> 02:30:45,000 SIMILAR WORDS, ANY PERSON 4058 02:30:45,000 --> 02:30:46,000 APPLIED TO GOVERNMENT OFFICIALS. 4059 02:30:46,000 --> 02:30:49,000 >> LET'S JUST ASSUME. 4060 02:30:49,000 --> 02:30:52,000 THAT WE ARE AVOIDING AG TO GET 4061 02:30:52,000 --> 02:30:54,000 CONSTITUTIONAL QUESTION IF WE DO 4062 02:30:54,000 --> 02:30:56,000 THAT IN THE ORDINARY CASE,ND 4063 02:30:56,000 --> 02:30:58,000 WHAT IS CONFUSING TO ME ABOUT 4064 02:30:58,000 --> 02:30:59,000 THIS CASE IS THAT WE ARE NOT 4065 02:30:59,000 --> 02:31:01,000 BEING ASKED TO AVOID THE 4066 02:31:01,000 --> 02:31:03,000 TUTIONAL QUESTION. 4067 02:31:03,000 --> 02:31:05,000 IN FACT, THE QUESTION OF WHETHER 4068 02:31:05,000 --> 02:31:06,000 OR NOT A PRESIDENT CAN BE HELD 4069 02:31:06,000 --> 02:31:09,000 LIABLE CONSISTENT WITH THE 4070 02:31:09,000 --> 02:31:11,000 CONSTITUTION OR DOES HE HAVE IMMUNITY IS THE QUESTION THAT IS 4071 02:31:11,000 --> 02:31:13,000 BEING PRESTETO US. 4072 02:31:13,000 --> 02:31:14,000 SO I DON'T UNDERSTAND HOW THE 4073 02:31:14,000 --> 02:31:18,000 CLEAR STA KIND OF ANALYSIS 4074 02:31:18,000 --> 02:31:20,000 EVEN WORKS. 4075 02:31:20,000 --> 02:31:25,000 IT SEEMS COMPLETELY TITLE LOGICAL TO FOR US TO ALL THE 4076 02:31:25,000 --> 02:31:26,000 ESIDENTS CANNOT BE PROSECUTED 4077 02:31:26,000 --> 02:31:27,000 UNR ANY CRIMINAL STATUTE 4078 02:31:27,000 --> 02:31:30,000 WITHOUT A CLEAR STATEMENT FROM 4079 02:31:30,000 --> 02:31:32,000 CONGRESS TO AVOID THE QUESTION 4080 02:31:32,000 --> 02:31:33,000 OF WHETHER OR NOT THE 4081 02:31:33,000 --> 02:31:34,000 CONSTITUTION ALLOWTH TO BE 4082 02:31:34,000 --> 02:31:35,000 PROSECUTED. 4083 02:31:35,000 --> 02:31:36,000 YOU HAVE TO HAVE A REASON, 4084 02:31:36,000 --> 02:31:39,000 RIGHT? 4085 02:31:39,000 --> 02:31:40,000 YOU HAVE TO HAVE A RATIONALE FOR 4086 02:31:40,000 --> 02:31:41,000 APPLYING FOR CLEAR STATEMENT 4087 02:31:41,000 --> 02:31:45,000 LE. >> THEREOULD HAVE TO BE SOME 4088 02:31:45,000 --> 02:31:46,000 RATIONALE THAT IS NOT EVIDENT IN 4089 02:31:46,000 --> 02:31:47,000 EITHER THE EXISTING DOCTRINE OR 4090 02:31:47,000 --> 02:31:49,000 THE TEXT. 4091 02:31:49,000 --> 02:31:50,000 JUST ONE DATA POINT FOR THE 4092 02:31:50,000 --> 02:31:52,000 COURT IN THIIN ABOUT HOW THE 4093 02:31:52,000 --> 02:31:56,000 CLEAR STATEMENT RULE WORKS, A 4094 02:31:56,000 --> 02:31:59,000 CASE ABOUT GRATUITIE AND THE 4095 02:31:59,000 --> 02:32:01,000 COURT IS PROBABLY FAMILIAWI, 4096 02:32:01,000 --> 02:32:02,000 JUSTICE SCALIA WROTE AN OPINION 4097 02:32:02,000 --> 02:32:05,000 FOR ANOUSOU IN WHICH HE 4098 02:32:05,000 --> 02:32:07,000 USED A HYPOTHETICAL ABOUT WHAT WOULD HAPPEN IF THE PRESIDENT 4099 02:32:07,000 --> 02:32:09,000 REIVED A SPORTS REPLICA JERSEY 4100 02:32:09,000 --> 02:32:11,000 AT A TYPICAL WHITE HOUSE EVENT, 4101 02:32:11,000 --> 02:32:16,000 ATIOLATE SECTION 201C? 4102 02:32:16,000 --> 02:32:17,000 THE COURT OFFERED A CONSTRUCTION 4103 02:32:17,000 --> 02:32:18,000 THAT IT HAD TO BE BECAUSE OF AN 4104 02:32:18,000 --> 02:32:19,000 OFFICIAL A TAVOID THAT 4105 02:32:19,000 --> 02:32:21,000 PROBLEM. 4106 02:32:21,000 --> 02:32:23,000 I THINK IF THERE WAS SUCH A 4107 02:32:23,000 --> 02:32:24,000 WELL-RECEIVED UNDERSTANDING THAT 4108 02:32:24,000 --> 02:32:26,000 PRESIDENTS ARE NOT INCLUDED IN 4109 02:32:26,000 --> 02:32:29,000 GENERAL FEDERAL CRIMINAL LAW 4110 02:32:29,000 --> 02:32:31,000 LESS A PRESIDENT IS 4111 02:32:31,000 --> 02:32:34,000 SPECIFICAMED, WHICH HE IS NOT, JUSTICE SCALIA WOULD HAVE 4112 02:32:34,000 --> 02:32:36,000 THOUGHT OF THAT AND SOME MEMBER 4113 02:32:36,000 --> 02:32:37,000 OF THE COURT WOULD HAVE REACTED. 4114 02:32:37,000 --> 02:32:39,000 AND NONE DID. 4115 02:32:39,000 --> 02:32:43,000 >> LET ME GO ON TO ASK ABOUT 4116 02:32:43,000 --> 02:32:44,000 WHAT YOU TAKE THE PARTITION'S 4117 02:32:44,000 --> 02:32:49,000 SION TO BE IN THICA. 4118 02:32:49,000 --> 02:32:52,000 BECAUSWEAD A LOT OF TALK ABOUT DRAWING THE LINEJUICE 4119 02:32:52,000 --> 02:32:54,000 KAVANAUGH, JUSTICE GORSUCH 4120 02:32:54,000 --> 02:32:55,000 SUGGESTED THAT WE SHOULD BE 4121 02:32:55,000 --> 02:32:59,000 INKING ABOUT FIRST, WE HAV 4122 02:32:59,000 --> 02:33:04,000 PRIVATE VS. OFFICIAL. 4123 02:33:04,000 --> 02:33:05,000 AND THEN WITHIN OFFICIAL WE HAVE 4124 02:33:05,000 --> 02:33:08,000 SOME THING THAT CORE ACTS VS. 4125 02:33:08,000 --> 02:33:10,000 HER ACTS AS WE TRY TO FIGURE 4126 02:33:10,000 --> 02:33:11,000 OUT AT WHAT LEVEL THE PRESIDENT 4127 02:33:11,000 --> 02:33:13,000 IS GNGO HAVE IMMUNITY. 4128 02:33:13,000 --> 02:33:15,000 BUT I TOOK THEIONERS 4129 02:33:15,000 --> 02:33:16,000 ARGUMENT IN THIS CASE NOT TO BE 4130 02:33:16,000 --> 02:33:18,000 INVITING US TO ENGAGE IN THAT 4131 02:33:18,000 --> 02:33:19,000 KIND OF ANALYSIS. 4132 02:33:19,000 --> 02:33:22,000 I THOUGHT HE WAS ARGUING THAT 4133 02:33:22,000 --> 02:33:25,000 ALCIAL ACTS DID IMMUNITY, 4134 02:33:25,000 --> 02:33:29,000 AND SO I DIDN'T UNDERSTAND US TO 4135 02:33:29,000 --> 02:33:30,000 BE HAVING TO DRILL DOWN ON WHICH 4136 02:33:30,000 --> 02:33:34,000 OFFICIAL ACTS DO. 4137 02:33:34,000 --> 02:33:36,000 MQUESTION IS WHY ISN'T IT 4138 02:33:36,000 --> 02:33:38,000 ENOUGH FOR THEURSES OF THIS 4139 02:33:38,000 --> 02:33:42,000 CASE, GIVEN WITH THE PETITIOR HAS ARGUED, TO JUST ANSWETH 4140 02:33:42,000 --> 02:33:43,000 QUESTION OF WHETHER ALL OFFICIAL 4141 02:33:43,000 --> 02:33:46,000 ACTS GET IMMUNITY? 4142 02:33:46,000 --> 02:33:50,000 >> THAT IS ENOUGH AND IF THE 4143 02:33:50,000 --> 02:33:51,000 COURT ANSWEDHAT QUESTION THE 4144 02:33:51,000 --> 02:33:53,000 WAY THAT THE GOVERNMENT HAS 4145 02:33:53,000 --> 02:33:54,000 SUBMTE THAT RESOLVES THE 4146 02:33:54,000 --> 02:33:56,000 CASE. 4147 02:33:56,000 --> 02:33:58,000 WA TO MAKE A CLARIFICATION 4148 02:33:58,000 --> 02:34:00,000 THAT I MAY HAVE LEFT THE COURT 4149 02:34:00,000 --> 02:34:02,000 WITH SOME UNCERTAINTY ABOUT. 4150 02:34:02,000 --> 02:34:03,000 E OFFICIAL ACT ANALYSIS THAT 4151 02:34:03,000 --> 02:34:05,000 MY FRIEND IS TALKING ABOUT IS 4152 02:34:05,000 --> 02:34:09,000 THE FITZGERALD VS. NIXON OUT OF 4153 02:34:09,000 --> 02:34:10,000 PERIMETER TEST WHICH IS 4154 02:34:10,000 --> 02:34:13,000 EXTREMELY PROTECTIVE T 4155 02:34:13,000 --> 02:34:15,000 PRESIDENT. 4156 02:34:15,000 --> 02:34:17,000 IT IS SAYING THAT EVERYTHING THE PRESIDENT DOES IS A TARGET FOR 4157 02:34:17,000 --> 02:34:19,000 LAWSUITS. 4158 02:34:19,000 --> 02:34:21,000 THAT IS NOT A GREAT THING AND 4159 02:34:21,000 --> 02:34:23,000 THEREFORE TY E ALL CUT OFF. 4160 02:34:23,000 --> 02:34:26,000 >> ANYTHING THAT IS OFFICIAL IN 4161 02:34:26,000 --> 02:34:29,000 THOUR PERIMETER IS NOT 4162 02:34:29,000 --> 02:34:31,000 SUECTO LIABILITY. 4163 02:34:31,000 --> 02:34:33,000 SO WE DON'T HAVE T GO 4164 02:34:33,000 --> 02:34:37,000 WELL, WE HAVE AN OFFICIAL, WHICH 4165 02:34:37,000 --> 02:34:38,000 WITHIN THAT MIGHT BE SUBJECT TO 4166 02:34:38,000 --> 02:34:40,000 LIABILITY? 4167 02:34:40,000 --> 02:34:41,000 NOT ON THE THEORY OF ABSOLUTE 4168 02:34:41,000 --> 02:34:43,000 IMMUNITY. 4169 02:34:43,000 --> 02:34:47,000 >> ON HIS THEORY, EVERYTHING IS 4170 02:34:47,000 --> 02:34:48,000 PROTECTIVE. 4171 02:34:48,000 --> 02:34:50,000 ON HOURS, THERE IS NO IMMUNITY 4172 02:34:50,000 --> 02:34:51,000 BUT THIS IS WHER I'VE DETROIT 4173 02:34:51,000 --> 02:34:52,000 DISTINCTION. 4174 02:34:52,000 --> 02:34:54,000 THERE ARE AS APPLY 4175 02:34:54,000 --> 02:34:55,000 CONSTITUTIONAL CHALLENGES THAT 4176 02:34:55,000 --> 02:34:58,000 YOU RUN THROUGH THE YOUNGSTOWN 4177 02:34:58,000 --> 02:34:59,000 FRAMEWORK AND ISOURT'S CUSTOMARY METHOD OF ANALYSIS AND 4178 02:34:59,000 --> 02:35:02,000 YOU DETERMI WTHER THERE IS 4179 02:35:02,000 --> 02:35:03,000 AN INFRINGEMEN ARTICLE TWO. 4180 02:35:03,000 --> 02:35:07,000 >> SO WHAT YOU'RE SAYING IS EVEN 4181 02:35:07,000 --> 02:35:08,000 IFE JECT THE ABSOLUTE IMMUNITY. 4182 02:35:08,000 --> 02:35:09,000 IT IS NOT AS THOUGH THE 4183 02:35:09,000 --> 02:35:11,000 PRESIDENT DOESN'T HA 4184 02:35:11,000 --> 02:35:13,000 OPPORTUNITY TO MAKE THE KIS 4185 02:35:13,000 --> 02:35:16,000 ARGUMENTS THAT ARISE AT THE 4186 02:35:16,000 --> 02:35:17,000 LEVEL OF THIS PARTICULAR ACT OR 4187 02:35:17,000 --> 02:35:21,000 ARTICULAR STATUTE AS A 4188 02:35:21,000 --> 02:35:22,000 PROBLEM IN RETROSPECT? 4189 02:35:22,000 --> 02:35:24,000 I THINK I HEAYOSAYING WE 4190 02:35:24,000 --> 02:35:28,000 SHOULD NOT BE TRYING TO, IN THE 4191 02:35:28,000 --> 02:35:30,000 ABSTRACT, SET TSE BOUNDARIES AHEAD OF TE A 4192 02:35:30,000 --> 02:35:31,000 FUNCTION OF THE BLANKET IMMUNITY 4193 02:35:31,000 --> 02:35:34,000 TO ALLOW EACH DELEGATION TO BE 4194 02:35:34,000 --> 02:35:36,000 BROUGHTND THEN YOU WOULD 4195 02:35:36,000 --> 02:35:37,000 DECIDE IN THAT CONTEXT? 4196 02:35:37,000 --> 02:35:41,000 >> YES, WITH THE ADDITIONAL NOTE 4197 02:35:41,000 --> 02:35:42,000 THAT PETITIONERS NEVER MADE THAT 4198 02:35:42,000 --> 02:35:43,000 ARGUMENT AND THINK IT WOULBE 4199 02:35:43,000 --> 02:35:45,000 UP TO A DISTRICT COURT TO DECIDE 4200 02:35:45,000 --> 02:35:47,000 WHETHER TO GO THAROE AT THIS 4201 02:35:47,000 --> 02:35:49,000 POINT IN THE LITIGATION. 4202 02:35:49,000 --> 02:35:52,000 YOU'VE PUT ALL OF YOUR EGGSN 4203 02:35:52,000 --> 02:35:53,000 THE ABSOLUTE IMMUNITY BASKET. 4204 02:35:53,000 --> 02:35:56,000 >> AND IWE SEE THE QUESTION 4205 02:35:56,000 --> 02:35:57,000 PRENTED IS BROADER THAN THAT 4206 02:35:57,000 --> 02:36:02,000 AND WE DO SAY LET'S ENGAGE WITH 4207 02:36:03,000 --> 02:36:04,000 CORE OFFICIAL AND NOT CORE AND 4208 02:36:04,000 --> 02:36:07,000 TRY TO FIGURE OUT THE LINE, IS 4209 02:36:07,000 --> 02:36:10,000 THIS THE RIGHT VEHICLE TO HAMMER 4210 02:36:10,000 --> 02:36:11,000 OUT THAT TEST? 4211 02:36:11,000 --> 02:36:15,000 I MEAN, I HAD UNDERSTOOD THA 4212 02:36:15,000 --> 02:36:16,000 MOST IF NOT ALL OF THE 4213 02:36:16,000 --> 02:36:19,000 ALGAONSER, THERE'S REALLY 4214 02:36:19,000 --> 02:36:21,000 PLAUSIBLE ARGUMENT THAT THEY 4215 02:36:21,000 --> 02:36:25,000 WOULD FALL INTO COURT VS. NOT 4216 02:36:25,000 --> 02:36:29,000 SU TT THEY ARE IMMUNE. >> WE DON'T THINK THERE ARE ANY 4217 02:36:29,000 --> 02:36:30,000 CORE ACTS THAT HAVE BEEN ALLEGED 4218 02:36:30,000 --> 02:36:31,000 IN THE INDICTMENTS THAT WOULD 4219 02:36:31,000 --> 02:36:32,000 OFF-LIMITS AS A MATTER OF 4220 02:36:32,000 --> 02:36:36,000 ARTICLE TWO. >> SO W ARE GOING TO DO THIS 4221 02:36:36,000 --> 02:36:37,000 KIND OF ANALYSIS, T TO FIGURE 4222 02:36:37,000 --> 02:36:39,000 OUT WHAT THE LINE IS, WE SHOULD 4223 02:36:39,000 --> 02:36:41,000 PROBABLY WAIT FOR A VEHICLE THAT 4224 02:36:41,000 --> 02:36:42,000 TUALLY PRESENTED IN A WAY THAT 4225 02:36:42,000 --> 02:36:43,000 ALLOWS US TO TEST THE DIFFERENT 4226 02:36:43,000 --> 02:36:46,000 SIDES OF THE STANDARD THAT WE 4227 02:36:46,000 --> 02:36:47,000 WOULD BE CREATING, RIGHT? 4228 02:36:47,000 --> 02:36:52,000 >> I DON'T SEE ANY NEED IN THE 4229 02:36:52,000 --> 02:36:53,000 -- THIS CASE THE COURT TO EMBARK 4230 02:36:53,000 --> 02:36:56,000 ON THAT ANALYSIS. >> THE FINAL SET OF QUESTIONS 4231 02:36:56,000 --> 02:36:58,000 TH IAVE HAS TO DO WITH WHAT 4232 02:36:58,000 --> 02:36:59,000 I DO TAK AS A VERY LEGITIMATE 4233 02:36:59,000 --> 02:37:03,000 CONCERNBOUT PROSECUTORIAL 4234 02:37:03,000 --> 02:37:06,000 ABUSE, ABOUT FUTURE PRESIDENTS 4235 02:37:06,000 --> 02:37:08,000 BEING TARGETED FOR THINGS THAT 4236 02:37:08,000 --> 02:37:10,000 THEY HAVE NEN OFFICE. 4237 02:37:10,000 --> 02:37:11,000 I TAKE THAT CONCERN, I THINK IT 4238 02:37:11,000 --> 02:37:13,000 IS A REAL THG. 4239 02:37:13,000 --> 02:37:15,000 BUT I WOND WTHER SOME OF IT 4240 02:37:15,000 --> 02:37:19,000 MIGHT ALSO BE MITIGATED BY THE 4241 02:37:19,000 --> 02:37:21,000 THATING 4242 02:37:21,000 --> 02:37:23,000 ADMINISTRATIONS HAVE A 4243 02:37:23,000 --> 02:37:26,000 SELF-INTEREST IN PROTECTING THE 4244 02:37:26,000 --> 02:37:28,000 PRESIDENCY, THAT THEY UNDERSTAND 4245 02:37:28,000 --> 02:37:31,000 THAT IF THEY GO AFTER THE 4246 02:37:31,000 --> 02:37:33,000 GUY, SOON THEY ARE GOING TO BE A 4247 02:37:33,000 --> 02:37:34,000 GUY AND THEY WILL HAVE 4248 02:37:34,000 --> 02:37:35,000 CREATED PRECEDENT THEY WILL BE 4249 02:37:35,000 --> 02:37:36,000 PROBLEMATIC. 4250 02:37:36,000 --> 02:37:38,000 SO I WONDER IF MY COMMENT ON 4251 02:37:38,000 --> 02:37:40,000 WHETHER SO OF THE CAUTION FROM 4252 02:37:40,000 --> 02:37:41,000 THE JU DEPARTMENT AND THE 4253 02:37:41,000 --> 02:37:43,000 PROSECUTORS AND WHATNOT COMES 4254 02:37:43,000 --> 02:37:46,000 FROM AN UNDERSTANDING THAT THEY 4255 02:37:46,000 --> 02:37:50,000 WILL SOON BE FPRESIDENT AS WELL. 4256 02:37:50,000 --> 02:37:51,000 ABSOLUTELY, AND I WOULD 4257 02:37:51,000 --> 02:37:53,000 LOCATE THIS AS A STRUCTURAL 4258 02:37:53,000 --> 02:37:54,000 ARGUMENT THAT IS BUILT INTO THE 4259 02:37:54,000 --> 02:37:57,000 CONSTITUTION ITSELF. 4260 02:37:57,000 --> 02:37:58,000 THE EXECUTIVE BRANCH, AS 4261 02:37:58,000 --> 02:38:01,000 COURT KNOWS, AS EXECUTIVE BRANCH 4262 02:38:01,000 --> 02:38:02,000 INTEREST THAT IS AT TIMES 4263 02:38:02,000 --> 02:38:06,000 ASSERTS OPPN TO 4264 02:38:06,000 --> 02:38:08,000 CONGRESS, SO THAT THE PROPER 4265 02:38:08,000 --> 02:38:10,000 FUNCTIONING OF THE PRESIDENT IS 4266 02:38:10,000 --> 02:38:12,000 PROTECTED, AND I BELIEVE THAT 4267 02:38:12,000 --> 02:38:13,000 AT VALUE WOULD BE OPERATIVE 4268 02:38:13,000 --> 02:38:17,000 AND USE OPERATIVE IN ANYTHING AS 4269 02:38:17,000 --> 02:38:18,000 THE MENTIS DISCHARGING A FORMER PRESIDENT TH CRIME. 4270 02:38:18,000 --> 02:38:21,000 >> AND I WOULD AO Y I THINK 4271 02:38:21,000 --> 02:38:24,000 IN ASK YOU TO COMME, 4272 02:38:24,000 --> 02:38:27,000 PRESIDENTS ARE CONCERNED ABOUT BEING INVESTIGATED AND 4273 02:38:27,000 --> 02:38:30,000 PROSECUTED, AND IT CHOSE TO SOME 4274 02:38:30,000 --> 02:38:32,000 NT THEIR ABILITY TO DO WHAT 4275 02:38:32,000 --> 02:38:35,000 THEY WANT IN OFFIC 4276 02:38:35,000 --> 02:38:36,000 THAT IS A CONCERN ON ONE SIDE. 4277 02:38:36,000 --> 02:38:39,000 BUT CAN YOU COMMENT ON THE 4278 02:38:39,000 --> 02:38:41,000 CONCERN ABOUT HAVING A PRESIDENT 4279 02:38:41,000 --> 02:38:43,000 UNBOUNDED WHILE IN OFFICE? 4280 02:38:43,000 --> 02:38:45,000 A PRESIDENT WHO KNOWS THAT HE 4281 02:38:45,000 --> 02:38:49,000 DOES NOT ULTIMATELY HAVE TO 4282 02:38:49,000 --> 02:38:50,000 FOLLOW T L BECAUSE THERE IS 4283 02:38:50,000 --> 02:38:51,000 NOTHING MORE THAN LICAL 4284 02:38:51,000 --> 02:38:56,000 ACCOUNTABILITY IN TERMS O 4285 02:38:56,000 --> 02:39:01,000 POLITICAL IMPEHMT? 4286 02:39:07,000 --> 02:39:09,000 FROM ULTIMATELY CORRUPTINOR 4287 02:39:09,000 --> 02:39:14,000 CONCEALING DOCUMENTS, FROM 4288 02:39:14,000 --> 02:39:15,000 SUPPORTING OTHERSMMIT 4289 02:39:15,000 --> 02:39:16,000 PERJURY, BRIBING WITNESSES OR 4290 02:39:16,000 --> 02:39:17,000 BLIC OFFICIALS. 4291 02:39:17,000 --> 02:39:22,000 IT GOES ON. 4292 02:39:22,000 --> 02:39:26,000 THE KNOWLEDGE THEYAVNO CRIMINAL ACCOUNTABILITY. 4293 02:39:26,000 --> 02:39:28,000 I SEE THAT AS A CONCERN THAT IS 4294 02:39:28,000 --> 02:39:29,000 AT LEAST EQUAL TO THE PRESIDENT 4295 02:39:29,000 --> 02:39:34,000 BEIN WORRIED, SO WRIED IN HIS 4296 02:39:36,000 --> 02:39:37,000 ABILITY TO FUNCTION. 4297 02:39:37,000 --> 02:39:39,000 SO COULD YOU PLEASE TALK ABOUT 4298 02:39:39,000 --> 02:39:42,000 THOSE COMPETING CONCERNS? 4299 02:39:42,000 --> 02:39:46,000 >> JUSTICE JACONI THINK IT 4300 02:39:46,000 --> 02:39:47,000 WOULD BE A CHANGE THAT NO 4301 02:39:47,000 --> 02:39:50,000 PRESIDENT HAS HAD OR HAS NEEDED. 4302 02:39:50,000 --> 02:39:52,000 I THINK WE HAVE ALSO HAD A 4303 02:39:52,000 --> 02:39:57,000 RFTLY FUNCTIONING SYSTE 4304 02:39:57,000 --> 02:40:01,000 THAT HAS SEEN OCCASIONAL EPISODES OF PRESIDENTIAL 4305 02:40:01,000 --> 02:40:03,000 MISCONDUCT. 4306 02:40:03,000 --> 02:40:04,000 E NIXON ERA IS A PARADIGMATIC 4307 02:40:04,000 --> 02:40:05,000 ON 4308 02:40:05,000 --> 02:40:06,000 THE INDICTMENT IN THIS CASE 4309 02:40:06,000 --> 02:40:07,000 ALLEGES ANOTHER. 4310 02:40:07,000 --> 02:40:09,000 FOR THE MOST PART, I BELIEVE 4311 02:40:09,000 --> 02:40:10,000 THAT THE LEGAL REGIME D E 4312 02:40:10,000 --> 02:40:12,000 CONSTITUTIONAL REGIME THAT WE 4313 02:40:12,000 --> 02:40:15,000 HAVE WORKS, AND TO ALTER IT 4314 02:40:15,000 --> 02:40:17,000 POSES MORE RISKS. 4315 02:40:17,000 --> 02:40:19,000 >> THANK YOU. 4316 02:40:19,000 --> 02:40:22,000 RE? 4317 02:40:22,000 --> 02:40:23,000 HAVNOTHING FURTHER, YOUR 4318 02:40:23,000 --> 02:40:25,000 HONOR. 4319 02:40:25,000 --> 02:40:28,000 >> THE CASE IS SUBMITTED. 4320 02:40:28,000 --> 02:40:31,000 >> THE HONORABLE COURT NOW 4321 02:40:31,000 --> 02:40:32,000 ADJOURNED UNTIL THURSDAY, THE 4322 02:40:32,000 --> 02:40:37,000 NINTH OF MAY AT 10:00. 4323 02:40:38,000 --> 02:40:43,000 ANNOUNCER: AND THE JUSTICES 4324 02:40:45,000 --> 02:40:46,000 WRAPPING UP ORAL ARGUMENTS IN 4325 02:40:46,000 --> 02:40:47,000 THE PRESIDENTIAL IMMUNITY CASE 4326 02:40:47,000 --> 02:40:48,000 CONCERNING FORMER PRESIDENT 4327 02:40:48,000 --> 02:40:50,000 DONALD TRUMP. 4328 02:40:50,000 --> 02:40:51,000 THE CASE WILL DETERMINE WHETHER 4329 02:40:51,000 --> 02:40:53,000 THE FORMER PRESIDENT WILL BE 4330 02:40:53,000 --> 02:40:54,000 ABLE TO AVOID CRIMINAL 4331 02:40:54,000 --> 02:40:55,000 PROSECUTION FOR HIS ALLEGED ROLE 4332 02:40:55,000 --> 02:40:57,000 IN TRYING TO OVERTURN THE 4333 02:40:57,000 --> 02:40:59,000 RESULTS OF THE 2020 ELECTION. 4334 02:40:59,000 --> 02:41:01,000 DURING THE HEARING, JUSTICES 4335 02:41:01,000 --> 02:41:02,000 CITED PREVIOUS CASES OF 4336 02:41:02,000 --> 02:41:06,000 PRESIDENTIAL IMMUNITY. 4337 02:41:06,000 --> 02:41:09,000 JUSTICE KAGAN HIGHLIGHTING THAT 4338 02:41:09,000 --> 02:41:10,000 THE FRAMERS OF THE CONSTITUTION 4339 02:41:10,000 --> 02:41:11,000 DID NOT ADD AN IMMUNITY CLAUSE 4340 02:41:11,000 --> 02:41:14,000 IN THE CONSTITUTION, AS POINTED 4341 02:41:14,000 --> 02:41:15,000 OUT BY CNN'S CAITLIN COLDITZ. 4342 02:41:15,000 --> 02:41:18,000 THIS EVENING AT 8:00 EASTERN, WE 4343 02:41:18,000 --> 02:41:19,000 WILL TAKE YOUR CALLS AND COMMENT 4344 02:41:19,000 --> 02:41:22,000 AND SHOW TODAY'S ORAL ARGUMENT. 4345 02:41:22,000 --> 02:41:23,000 TAKING A LOOK AT SOME OF THE 4346 02:41:23,000 --> 02:41:24,000 SIGHTS AND SOUNDS OUTSIDE THE 4347 02:41:24,000 --> 02:41:25,000 COURT WHERE PROTESTERS ARE 4348 02:41:25,000 --> 02:41:30,000 GATHERED. 4349 02:41:52,000 --> 02:41:57,000 ♪ 4350 02:43:07,000 --> 02:43:11,000 >> LET IT GO. 4351 02:43:11,000 --> 02:43:13,000 LET IT GO. 4352 02:43:13,000 --> 02:43:17,000 LET IT GO. 4353 02:43:17,000 --> 02:43:22,000 ♪ 4354 02:43:55,000 --> 02:44:00,000 ♪ 4355 02:44:01,000 --> 02:44:04,000 >> C-SPAN'S CAMERAS OUTSIDE THE 4356 02:44:04,000 --> 02:44:07,000 SUPREME COURT. 4357 02:44:07,000 --> 02:44:08,000 WE ARE EXPECTING IF WE DO SEE OR 4358 02:44:08,000 --> 02:44:11,000 HEAR FROM SOME OF THE LAWYERS 4359 02:44:11,000 --> 02:44:12,000 WHO ARGUED THE CASE, WE WILL 4360 02:44:12,000 --> 02:44:14,000 MAKE SURE TO BRING YOU THEIR 4361 02:44:14,000 --> 02:44:17,000 REMARKS IN AN IMMUNITY CASE 4362 02:44:17,000 --> 02:44:18,000 DEALING WITH FORMER PRESIDENT 4363 02:44:18,000 --> 02:44:19,000 DONALD TRUMP. 4364 02:44:19,000 --> 02:44:21,000 THE QUESTION BEFORE THE COURT, 4365 02:44:21,000 --> 02:44:23,000 WHETHER MR. TRUMP CAN BE TRIED 4366 02:44:23,000 --> 02:44:24,000 ON CRIMINAL CHARGES THAT HE 4367 02:44:24,000 --> 02:44:25,000 CONSPIRED TO OVERTURN THE 4368 02:44:25,000 --> 02:44:27,000 RESULTS OF THE 2020 ELECTION. 4369 02:44:27,000 --> 02:44:29,000 JUST GETTING A LOOK OUTSIDE THE 4370 02:44:29,000 --> 02:44:30,000 COURT RIGHT NOW WITH SOME OF THE 4371 02:44:30,000 --> 02:44:32,000 ONLOOKERS THAT WERE PROTESTERS 4372 02:44:32,000 --> 02:44:33,000 AS WELL. 4373 02:44:33,000 --> 02:44:35,000 THE OUTCOME OF THIS WILL 4374 02:44:35,000 --> 02:44:36,000 DETERMINE NOT ONLY WHETHER 4375 02:44:36,000 --> 02:44:37,000 DONALD TRUMP'S TRIAL IN 4376 02:44:37,000 --> 02:44:39,000 WASHINGTON, D.C. BEFORE A U.S. 4377 02:44:39,000 --> 02:44:41,000 DISTRICT COURT CAN GO FORWARD, 4378 02:44:41,000 --> 02:44:43,000 BUT ALSO WHETHER THE FORMER 4379 02:44:43,000 --> 02:44:46,000 PRESIDENT TRIALS IN FLORIDA AND GEORGIA CAN PROCEED. 4380 02:44:46,000 --> 02:44:48,000 AGAIN, WE COULD SEE LAWYERS HERE WHO ARGUED THE CASE TO REPORTERS 4381 02:44:48,000 --> 02:44:51,000 OUTSIDE THE COURT. 4382 02:44:51,000 --> 02:44:56,000 WATCHING LIVE COVERAGE HERE ON C-SPAN. 4383 02:45:36,000 --> 02:45:41,000 ♪ 4384 02:45:57,000 --> 02:46:02,000 >> VOTE DONALD TRUMP! 4385 02:46:09,000 --> 02:46:14,000 ♪ 4386 02:46:51,000 --> 02:46:55,000 >> JUST GETTING A LOOK AT THE 4387 02:46:55,000 --> 02:46:56,000 SIGHTS AND SOUNDS ISAIAH THE 4388 02:46:56,000 --> 02:46:57,000 SUPREME COURT AFTER JUSTICES 4389 02:46:57,000 --> 02:47:00,000 HEARD TRUMP V. UNITED STATES 4390 02:47:00,000 --> 02:47:02,000 LOOKING AT IMMUNITY CLAIMS BY 4391 02:47:02,000 --> 02:47:03,000 FORMER PRESIDENT DONALD TRUMP AND THIS EVENING AT 8:00 EASTERN 4392 02:47:03,000 --> 02:47:05,000 WILL TAKE YOUR CALLS AND 4393 02:47:05,000 --> 02:47:06,000 COMMENTS AND WE WILL SHOW 4394 02:47:06,000 --> 02:47:08,000 TODAY'S ORAL ARGUMENTS IN ITS 4395 02:47:08,000 --> 02:47:10,000 ENTIRETY. 4396 02:47:10,000 --> 02:47:12,000 THE FORMER PRESIDENT WAS A NEW 4397 02:47:12,000 --> 02:47:15,000 YORK CRIMINAL COURT FOR HIS HUSH MONEY TRIAL DECISION AS TO 4398 02:47:15,000 --> 02:47:19,000 WHETHER OR NOT HE VIOLATED THE COURT ISSUED GAG ORDER BEING 4399 02:47:19,000 --> 02:47:22,000 ANNOUNCED TODAY. SHORTLY BEFORE COURT STARTED, 4400 02:47:22,000 --> 02:47:24,000 THE FORMER PRESIDENT MET WITH SUPPORTERS AT A CONSTRUCTION 4401 02:47:24,000 --> 02:47:25,000 SITE AND TALKED ABOUT THE 4402 02:47:25,000 --> 02:47:26,000 ARGUMENT AT THE SUPREME COURT 4403 02:47:26,000 --> 02:47:31,000 TODAY. 4404 02:47:58,000 --> 02:48:01,000 >>