but i think that by keeping a low profile, it deprived the primary focus on him. and focusing on the negative of how joe biden has been president. obviously it is intense in the sense that it is bizarre, but in terms of the level of efforts, if it remains low intensity in the fall, i think that will be weird and interesting to see how that works. >> weird and interesting. yeah. that is about right. thank you,you both. and the special coverage of the immunity appeal starts right now.

>> any moment now donald trump will be arriving at the courthouse where a three judge panel will hear arguments, can the former president be held criminally responsible for his efforts to overturn his 2020 loss or does he have immunity from prosecution. this is special coverage, i'm layer ar laura coates. >> and i'm kaitlan collins. this could ultimately change the landscape of what presidents are allowed do. trump is foregoing the campaign trail to be at these oral arguments as he claim that's has absolute immunity, that his actions constitute official acts that he took while in office. >> of course i was entitled as president of the united states and commander in chief to immunity. i'm entitled to immunity. every president has immunity. especially one that did the job i did. i did a great job. and i wasn't working for myself, i was working for the country. i wasn't campaigning. election was long over.

wasn't campaigning. i was looking for voter fraud, something that i have to do under my mandate. >> that argument has already been rejected by the district judge in this federal election subversion case against donald trump. jack smith warned that trump's assertion threatens the license to presidents to commit crimes to remain in office. and we have a lot going on this morning sf morning. >> and we'll talk to the great panel. it is important to take a step back. of course we have elie honig, and also our january 6 committee lawyer. and glad that you are both here. take a step back for a second hoe. because when people hear court, they think either trial and "law & order" or they think the supreme court. this is neither of those moments. this is very specific. what do we expect big picture about why we're here? >> always good to orient

ourselves. this is jack myth's federal indictment for election interference based in washington, d.c. and donald trump argued to the trial judge, judge chutkan, that he is immune meaning that he cannot be prosecute the because he claims what he is being charged for fell within the duties as president. judge chutkan rejected that. saying we don't have kings in the country. so now what will happen today is a three judge panel, selected at ran dem from the d.c. circuit, will be asking a series of questions really barraging the lawyer, lawyers will get up there would not at a time, first donald trump's lawyer because he is the one appealing, and he will make his argument and then the questions will come rapid fire. you are trained as soon as you see one of the judges start to ask the question, and take a breath, you shut down what you are saying you listen and you a answer that question. it is scheduled for 20 minute, but they will take as long as

they want. sometimes less, but i think in this case more. and 20 minutes for jack smith's team, a lawyer from his team, and then trump's team will get back up for rebuttal. we won't get a ruling today. >> and important that you mention it is at random. these three judges are not as if you had to petition to get them in particular. it is kind of the luck of the draw. we know a little bit about the judges who will hear the case. but why is it so important to consider this is a three judge panel, not the full circuit, but these three are who you get? >> one, i think when you have three judge, you are thinking about a wider range of how to appeal the arguments. if you have one judge, you are thinking about that judge's history, that judge's experience. here you have to be more expansive in how you approach your case. that will be super important here. and what i'll be looking for here is what kind of questions are these judges asking. because that could be the insight into what we get on what

very this focused on. are they thinking about the role of the president under the constitution or the question itself of insurrection. i think that is the first taste of what we have of what a potential opinion would look like. and i agree we won't get an opinion today, but i expect that we'll get one incredibly quickly. these judges will be moving incredibly fast. may not seem fast for those at home, but for an appellate court, we're moving at lightning speed. i guarantee you they have already been drafting their opinions. >> and jack myth msmith made th request to move quickly. and it is not just the attorneys and prosecutors in the room, donald trump will also be in the room. for more, let's bring in paula reid who is outside the courthouse in washington, d.c. and this is not something that donald trump has to attend. he is choosing to attend this. so what do we expect to see when donald trump arrives at that

courthouse behind you? >> reporter: it is a rainy windy day here in washington. and this is a federal courthouse and hard to see much at all. he will likely go into a garage where we won't see him. and the proceedings are not televised. we'll get some audio, but we won't be able to see what is going on in the court. there will be a sketch artist. so really at the end of the day really all we see is a single sketch from the skrech etch a c making not to show up today. one lawyer will get up at a time before the three judge panel, pretty much they are person ed peppered from the questions. there is nothing for jump to do today in the courtroom. but we'll be listening to the

judges. s unclear what donald trump wants to accomplish. it is unusual to attend an p appellate oral argument. but really in addition to the larger constitutional questions being litigated today, the big strategy is to at least get the election subversion case, the trial supposed to start here in a few weeks delayed. so in terms of winning on the merits, trump's team has said they are not sure can he win on the constitutional question, but if he can continue to get the case delayed, that in and of itself is a win for him. >> paula reid in washington, thank you. and i just think what we were talking about this morning, the fact that -- paula makes a great point. it is not necessarily the outcome that matters to trump, but it is something that has never been asked or answered before, this question. >> and in a way it is a good thing. we don't want every year the question is can this president

commit this crime and be immune. but the fact that we're in a kind of wild, wild west where we'll have a court of appeals decide a question about whether we've got absolute immunity for a president of the united states. you know this so well. i could shoot someone on fifth avenue and be fine. the question now is can i go to pennsylvania avenue, is that good enough here. but this is important to think about. we won't hear this court decide whether he committed or engaged in insurrection. this is not a fact finding mission. this is a legal argument, do we have a king or not. >> we've said that 2kuddonald t makes all the hypotheticals come to life. with we know there is such thing as civil immunity. any former official, a prosecutor, any federal official can't be sued for something that is within the scope of the job. the way it was explained to me, if someone sues you because you indicted them, because you

subpoenaed them, you are covered. that is a part of the job. if you go out on the weekend and get in a fight at a bar, not covered. >> and we do that because we don't want people to be deterred from doing the actual official conduct. >> not because we're trying to help out officials, tu because we don't want the officials worrying that if i do something i'll get sued.because we don't want the officials worrying that if i do something i'll get sued. criminal immunity has been discussed but never decided by the supreme court. so two questions that donald trump has to win on. one, is there such thing as criminal immunity. if yes, was donald trump within the scope of the presidency in what he does. he has to prevail on both. but like you said, this is new ground for us. >> and you mentioned the optics. there is a reason that he is at this particular appellate argument. he was present in new york city for latitia james. he wants to be seen as confronting this issue. that is important for him.

>> and this is a al could you lated decision that trump making. the judges know won't be interested in the political aspect of this. they will be interested in asking questions of both sides of what the actual arts are from the prosecutors on jack smith's team but also trump's legal team. not the political points trump is trying to make. >> people have to understand that federal court is a somber place. and especially true in the d.c. circuit wildly considered the second most powerful court after the supreme court. i think the danger trump's lawyers have here, if they start performing for that audience of one, that is going to not be received well at all. this is not a place where you engage in theatrics, not a place where you engage in that kind of boisterous trump way of argument at all.

so we've seen them in other courtrooms take on that more aggressive more performative tone. and i think a panel here in the d.c. circuit won't be receptive to that. >> and what a great point about this. there are pretty powerful alum from the circuit court of appeals that you can mention you think about some of the supreme court justices. in fact one, judge childs, was on a short list for a potential supreme court nomination to replace justice breyer. and i've been before judge pann. and there was no pleasantries. she was very professional, but no moment where it was like let's shoot the breeze for a second. she wants to know why you are here and what you are doing about it. just twofr of the three very serious judge. he probably know that he is can't talk. even in new york he had to be on

the courthouse steps. but unlike what happened in new york when we saw james the a.g. do something dup diifferent, wet hear them on the courthouse steps. >> oh, no, trump will be a spectator. >> which will drive him crazy. >> he is allowed to talk outside of court. i don't know what he will. one thing that is important and tone of this rgtargument and trump's approach, there has been a shift. early day, he had a different team of lawyers. very aggressive and very political throwing things out there that were just so over the top. but now a shift. and if you -- >> can we just note, you can continue that point, but we do believe this is the former president actually arriving. he has been staying at his golf course in virginia. we believe this is him and his legal team arriving at the court. >> and notice he is going into an area that won't have a lot of

cameras available to be there. >> he made good time. if you look at this brief, it is by and large a very substantive brief. there is a little hyperbole that sneaks in there. this is all a joe biden setup. but by and large they are taking on the issues that they will be asked about today. >> and it is so important to walk through the charge. the actual substance of what they are being asked to decide today. it is not just the idea of was there presidential immunity. trump's team trying to suggest that he had double jeopardy that is attached here. and that is an important point we'll hear a lot about today. he is suggesting that because he's been impeached by congress, he can't be prosecuted criminally outside of that context. what do you make of that particularly given your experience? >> i think most serious legal

scholars have discounted that argument. it is telling that we haven't reached that until now because i don't think most folks think that argument will go anywhere. this is about the scope of presidential immunity. >> bring devil's advocate. they will say because it already happened, because there is impeachment, what will they be suggesting to the court likely to be shot down? >> i think that they will say even they charges are not similar, they are similar enough. because what is a key for double jeopardy is that you have been charged for the same offense, and you were acquitted. you shouldn't have to face the charges again. so even though he was not charged with what would be the same criminal charges jack smith abroad, his lawyers will say it is effectively the same thing. you had your shot, you don't get to come back again and try to get me. and saying that the constitution lays out this process of how to go after a president for such conduct and you can't try twice.

i think it will fail, but i think those are the contours. >> i think this argument is a leerz. not apples and orangers. there are different charges. this is not criminal proceedings. impeachment was a political procedure and no chance he succeeds on that at. >> and even mitch netamcconnell said, that the courts would take care of donald trump. and so much more to cover. so stick around. as you just saw, former president trump arriving at the d.c. federal court. we anticipate that the appeals

hearing will begin any moment. we'll have it live here on cnn. so stick with us.

moments ago donald trump arrived at the federal courthouse where his lawyers will try to convince the judge that's can't be tried for crimes that he may have committed while in office. >> is this a suspicious for presidential immunity, and also major implications for his political future as he appears poised to potentially become the republican nominee for

president. so with us now, margaret hoover and also john avlon. i just wonder how you look at this in the sense of how much of what they decide here, even if trump ultimately loses on the merits or if it goes to the supreme court and he loses, how much of the times here really could shape what the election itself looks like? >> i think obviously that is donald trump's bet. he seems -- he believes that he will benefit from this attention. he will fundraise off it, he will say i'm not being prosecuted, i'm being persecuted. and rally around me. and i think the important thing to remember, this is another reminder of politics is really history. this is history stakes. this is a test in the court of where presidents have complete immunity. or whether they are ultimately held under account under the law as any other person once they leave office. and those stakes couldn't be higher for our democracy. even beyond delay attempts and

attempts to profit off this politically. >> and an important point. we often think about the h minutia, this is about donald trump and 2024. but precedent can shape our democracy. and shakes are unbelievably high today. even though these are important legal questions coming before the courts, this is also a political day for donald trump. this is an attempt to rally his base toward the notion that he is a victim and no mistake that

this is one week before the iowa caucuses. >> he posted that if he can be prosecuted, even though that he is arguing that he can't, then joe biden can as well. this is what he said. >> joe would be right for indictment. so you are saying that trump shouldn't get immunity but joe biden would? i didn't do anything like he did. i ran a great country. >> and so it is important because is that political calculation. his right to make that choice to go to court as he is going today. but it is a political calculation that he is making here and it also seems to undercut his argument that he has presidential immunity and he can't be prosecuted for anything that he did in office. >> he is threatened. he is saying if you indict me and i'm elected, i'm indicts joe

biden. >> but also be careful what you wish for. >> and i think that elevates it. donald trump is operating out of short term self interests. a lot of the legal arguments don't really carry a lot of water. saying presidents are not covered by the 14th amendment. legal scholars can debate that. but i think there are problems you look at the ring intent. >> -- the lioriginal intent. >> there is nowhere in the president official duties that sending back electorate battles to the state is part of your job.

that is his point. >> and so i'm happy to go for that. >> and both of you stay with us. because at any moment now, we expect the appeals hearing to expect on time. what is the critical question? how far did donald trump's presidential immunity really extend? we'll bring it all to you live. some legalees, some not. stay with us.

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it is a major day and we're watching the developments in washington, d.c. where donald trump has arrived at federal courthouse moments ago. and right now oral arguments will be getting under way before a three judge panel on whether the former president can be held criminally response for his efforts to overturn his 2020 election loss. >> no small question. and we know nknow trump is clai that he has absolute immunity and insisting that any actions that he took while in office constitute official acts. the district judge overseeing the case has rejected had, but now it is up to the appellate panel to make the final decision here. we saw the motorcade arriving a few moments ago. and there are no cameras allowed in court today. you won't hear trump himself ababc i answering any questions. he is not required to be there but choosing to attend. and kristen holmes is joining us from washington. obviously incredible time for

him when it comes to what this could mean for him legally. incredibly significant. but also we're less than a week now away from the iowa caucuses. and the former president making the choice to be in the court instead of on the campaign trail. what have you heard from your sources so why? >>. >> reporter: absolutely he does not have to here. he could be in iowa, but he has chosen to go to court. as you noted, this is not mandatory, but this doesn't go -- this goes to his narrative that all of this is election interference, that this is political prosecution. and in fact he sent out a text message last night in which he said that he was burning the midnight oil but not because of the election, but instead because joe biden was forcing him to go to court. he wrote crooked joe forcing me into a courtroom to defend my right to presidential immunity, a right granted to every other president in history. of course as we know, no one is forcing him to be here and it

has nothing to do with president biden. but that is the narrative that he continues to sell. and he's selling it not only to his base, but to the public broadly trying to say that this is a two tier justice system. the other part of this, he knows that he can suck all the oxygen out of the room a week ahead of the caucuses in he is in court. but this is not the kind of circus that we see when he goes to new york. >> sorry to stop you, but the argument is beginning. let's listen in. >> good morning. before you get started, can i just get a couple of things on the record? our jurisdiction was challenged by anmicus. but you were questioning on collateral order youjurisdictio.

>> we denied the jurisdiction, that's correct. >> and you have either abandoned or not made the fifth amendment double jeopardy argument before us. >> from the impeachment judgment claw. we haven't argued had if you go to the straight double jeopardy clause that that alone would result in impeachment. we haven't said straightforward directly under the double jeo jeopardy clause in this court. >> so before that occur, i want to speak to you more about jurisdiction. because we still have to satisfy ourselves that we have the jurisdiction. with respect to the collateral order doctrine, how do you place that in line with the case that specifically says in a criminal case your jurisdiction needs to stem from the constitution or be

explicit as well in statutory law? >> and it is a situation where the right legal and practical of which would be destroyed if not violated for trial. and these claims of absolute immunity fall in the heartland of that description. that is reinforced by -- >> having do with explicitly stating that because we don't have an explicit communication here with respect to anything in the constitutional statute. >> i respectfully disagree with that. the doctrine of presidential immunity arises directly from article 2 section 1 and reinforced by the language of the impeachment judgment clause. it talks about situation of the right not to be tried. remedy is dismissal of

indictment. so we have the clearest reference to trial in any of the clauses which the supreme court has found interlocker eer to jurisdiction. presidential immunity. >> that is the distinction . >> it says presidential immunity. and so contemplates that there be interlocutory jurisdiction and further reinforced by the decisions. situations where the court said look, there is a debate and other claim that it doesn't rise directly from the contusion but analogous to the -- >> again about explicit.

in the double jeopardy trial, you have twice put in jeopardy, so you cannot be tried again. it shall not be questioned. so the language was explicit, but you are not giving me anything that says explicitly in -- >> only party convicted should be subject to the judgment and punishment. >> but a negative inference. [ inaudible ]. >> natural and ordinary meaning. an argument that is explicit. and also now that this court has expressly held that it isn't that you have to say right there in the text that there is a right that it has to be tried. but that once formulated has to explicitly included not the right to be tried. and the language previously is

emphasized by justice scalia where the interlocutory appeal not before trial, similar question in -- i'd also point out that the judgment has challenged the jurisdiction. >> has to be in our own jurisdiction. >> mid land asphalt the suggestion? >> i believe you are correct. an excellent point. turning to the merits if i may, your honor, to authorize the prosecution of a president for his official abilities would open a pandora's box from which this nation may never recover. could george w. bush be prosecuted for obstruction of an official proceeding for

allegedly giving false information to congress to induce the nation to go to war in iraq under false pretenses? could president obama be potentially charged with murder for allegedly authorizing drone strikes targeting u.s. citizens located abroad? could the president -- >> can i explore sort of the implications of which you are arguing? i understand your position to be that president is immune from criminal prosecution of any official act that he takes as president even if that action is taken for unlawful or unconstitutional purpose. is that correct? >> if the president is impeached by the united states senate, you know, a proceeding that reflects widespread political consensus, that would authorize prosecution. so with that exception. >> so seems to me that there are a lot of things that might not go through that process because it is quite a dcumbersome praz

wi process with a lot of different people involved. so in your view, would a president self pardon or sell secrets, those are if are offic acts. official act to grant a pardon and communicate with a foreign government. such a president would not be subject to criminal prosecution? >> pardons is an excellent example. that was with president clinton's pardon of marc rich. >> your position is that he can't be prosecuted for that. >> and as long as it was an official act. purely private conduct subject

to prosecution for that. >> could a president order s.e.a.l. team 6 to assassinate a political rival in that? that is an official act. >> he would have to be impeach and convicted. but if he weren't, no criminal liability for that? [ inaudible ]. >> clearly pre-suppose what the founders were -- >> i asked you a yes or no question. could a president who ordered s.e.a.l. team 6 to assassinate a political rival not impeached, would he be subject to criminal prosecution? >> if impeached and convicted first. >> so your answer is no. >> my answer is qualified yes. there is a political process that would have to occur under the constitution which requires impeachment and conviction by the senate.

in these exceptional cases, you'd expect speedy impeachment and conviction. but what founders are much more worried about is what james madison calls in federalist number 47 the new treason, they were much more concerned about the abuse of criminal process for political purposes to disable the presidency from factions. and that is what we see in this case. >> i've asked you a series of hypotheticals about criminal actions that could be taken by a president and could be considered official acts. and i've asked you, would such a president be subject to criminal prosecution if he is not -- and your answer, your question or no answer, is no. >> i believe i said qualified yes if he is impeach and convicted first. >> so he is not impeached or convicted. put that aside. you're saying a president could self pardon, could sell military secret the, could order s.e.a.l.

team 6 to assassinate a political rival? >> strikes me something that is not held to be a official act. >> but your brief says that communicating with a branch agency is an official act and communicating with a foreign government is an official ability. [ inaudible ]. >> official acts never examable by the courts. he aez isays it like four diffe times. >> and your position as i understand it, if a president is impeached or convicted, impeached and convicted by congress, then he is subject to criminal prosecution, correct? >> be it necessary.

[ inaudible ]. >> is that yes? >> yes. >> so therefore he is not completely and absolutely immune because under what you concede, he can be prosecuted if there is impeachment and conviction by the senate? >> very, very formidable -- [ inaudible ]. specifically if convicted, i think that is -- >> isn't that also a concession that president can be prosecuted for official act? >> unique circumstances. >> doesn't that narrow the issues before us to can a president be impeached -- sorry,

can a president be prosecuted without first being impeached and convicted? all of your other arguments to fall away, your separation of powers argument falls away, your policy arguments fall away if you concede that president can be criminally prosecuted under some circumstances. >> in article two of the investing clause [ inaudible ] article there lack of jurisdiction to examine in the presidential abilicts. >> but you conceded if impeached and convicted. >> and there is an exception to that in the impeachment judgment clause. so constitution does it in many situations where it engages in balancing. framers were most concerned about not the notion of the president would never be prosecuted of things of

outrageous political opponents, what they were concerned about is politically motivated prosecutions. they didn't say the president could neveren prosecuted. it was separation of powers. >> but once you concede that there is not this absolute immunity, en prosecuted. it was separation of powers. >> but once you concede that there is not this absolute immunity,ben prosecuted. it was separation of powers. >> but once you concede that there is not this absolute immunity,en prosecuted. it was separation of powers. >> but once you concede that there is not this absolute immunity,n prosecuted. it was separation of powers. >> but once you concede that there is not this absolute immunity, prosecuted. it was separation of powers. >> but once you concede that there is not this absolute immunity, you are saying there is one specific circumstance, that means that there is not this absolute immunity that you claim. >> i'm not aware of any case or constitutional doctrine that says the firm principle and creates a narrow exception and therefore the exception makes the principle vanish. i just disagree. >> that is not what i'm asking you. i'm saying that you are coming before us and saying that there is this absolute immunity that is in the separation of powers that the judiciary can never sit in judgment on what the president is doing. but you are conceding that that

is not true because under some circumstances, judiciary can do that. that is all i'm saying. >> [ inaudible ] sitting in judgment over acts, a very narrow exception. >> i understand. but once you concede that presidents can be prosecuted under some circumstances, the separation of powers argument falls away and the case before us narrowed to you your interpretation of the impeachment judgment clause. does the clause actually say what you say it said. that is all that is really -- we need to decide. >> i respectfully disagree. there is a strong principle and reinforced by the justice marshall. saying we can never sit in judgment over a president see official acts.

therefore we could do it whatever we want to. he said the exact opposite. >> answering the larger question about whether there is presidential immunity from official acts or are we looking to a standard on a motion of dismiss to says take the allegation as true and then look to whether or not we should be looking at official acts in that lens? >> actually both. [ inaudible ]. therefore the court never reached the second issue which is the face of the indictment. we have strong arguments on both of those things. president biden after he leaves office for high school managing t -- his miss managing the border potentially. >> and you indicated that there were pardons or when people were not prosecuted, not everybody

goes through an impeachment proceeding before they get prosecuted because that is within the discretion of the pos contemplated the sequence would be mandatory. you have to be convicted first. >> but it is treason, high crimes of misdemeanor. >> yeah, high crimes and misdemeanors would cover anything that the u.s. senate makes a political judgment justifies removing him from office. >> but it does not make political judgments assumingly to charge. >> no basis in the prosecution the number one political opponent and greatest threat.

sfw s >> the clause limits itself to certain acts and then therefore if convicted as you indicated, impeached and convicted there after, could be process could you go. but not everybody goes through process. prosecutors later on can come into information and evidence after the investigation to make determination about what they would like to prosecute. you are not always confined to whatever would be an impeachment judgment clause. >> whatever the practice is respect to -- the evidence 23r9 founding generations you can't do that -- [ inaudible ].foundi do that -- [ inaudible ]. uk sneakness of the presidency. and so it reaffirms about the unique nature of the particular

office.niqueness of the preside. and so it reaffirms about the unique nature of the particular office. >> even where there is a deal cut under president nixon, there is an assumption that you can be prosecuted because why enter into those particular acts. >> for example clinton verse jones makes it clear that clinton got an indictment deal in good changeexchange for not convicted. the question is can you be indicted for official acts. nixon, two things to say. president nixon while accused of conduct -- >> that is a purely private conduct. if we go to the indictment, they are not pledge -- they are alleging that this is private conduct subject to fraud. not official acts. so

why don't you speak to that as well as the indictment? >> the official acts characterized as private acts as to the alleged motives and the characterization of the language in the indictment is the purely engaged in for the purposes which is foreclosed as the strong language -- >> and this circuit is the office seeker as opposed to office holder as to committing acts. >> this is strongly reinforcing as to the supreme court cases of sparks versus marbury versus madison and i understand the blazenbury that they use the word objective several time, and it is not on purpose and the motive and this is pushed in

bla blazingame and it is the opinion of the strongest principle in the contex -- >> i am sorry to my colleagues that we have given you the time this you will need, but with respect to the actual indictment, it does not gloss over, you know, in put in terms of what you are describing, so if we are looking at the face of the indictment as to what is charged when it has gone through the grand jury process unlike the impeachment clause, how do we look at those particular acts as described, because we have to look at those at face value. >> it is nixon versus fitzgerald, and the allegation that president nixon had a unlawful whistle-blower essentially and that whistle-blower came into the court and said it is not subject to immunity, because it is unlawful, and the court said that we are not looking at that granularity of detail and the

level of specifity of detail is level of conduct is that obvious level of conduct and the level of conduct as to what it should be, and the courtland of the level of power. >> you said some of which -- >> many of which, because it is the ellipse speech of the bl blabl blasingame, and all of those are immune, and with the department of justice and meeting with the department of congress falls within the heartland of article 2 section iii and communing with

congress at that time. >> let me ask you, with the concessions made in the first impeachment proceeding and then in trump v. vance that impeachment should be stayed and waited until he shout of office when he would be subject to viability. >> as to trump v. vance, it is a purely private conduct and that involved pre-tax conduct that predated his time in office and that is purely private condublgt and subject to prosecution is correct, but as for the impeachment brief they have cited in briefs is what that said is that we have a judicial process in the country, period. we have investigative process in country to which no further officer is immune, and it did not say that you could raise the immunity defense -- >> sorry, but there is a your client said through counsel no former officeholder is immune

through investigation of prosecution. >> investigation is no prosecution. that may be true of subordinate office, but as to the president, he is immune unless he is impeached and convicted. >> he was president at the time, and the position is that no present officeholder is immune, and in fact, the argument was that there is no need to vote for impeachment because we have this backstop which is criminal prosecution, and it seems that many senators rely than in voting to acquit. >> and that belies speculation, because the statement of, i think that the court lacks the ability to read into what motivated the senator's votes in the impeachment process -- >> i think that the question that judge henderson is asking you is that you took the position or your client did in the impeachment proceedings that there would be an option for criminal prosecution later, and it is in the congressional

record, and i guess that the question is what has changed or why have you changed your position? >> you agree with that arkizatia characterization of the record, the concession made there or not made there, and that is the proceeding, but these are very different proceeding, and so again, the fact that no one is immune from the judicial process to go forward is consistent with the statement of the judicial immunity could be raised and that there could be a criminal process, and that criminal proceedings like this could be raised, and that there is no such concession of criminal immunity, and no such thing in the proceedings that what the criminal proceedings were done here is that no president is criminally immune from criminal

prosecution is just not there in the congressional record. >> let me go back to marbury versus madison and you have isolated that one sentence, but isn't it true that the progeny of marbury versus madison has distinguished between official and ministerial meaning opposed by law which means that it is ladder one that can be held by law in commonwealth v. virginia and the clause of the supreme court said in essence lop off all of the evidence dealing with speech and debate, he can still be prosecuted, that is that congressman, or i believe it is the conspiracy to defraud the

u.s. or something, and then in the commonwealth of virginia, you had the judge who had been charged with a crime under which you could not discriminate in picking jurors based on rate, and in oscillating in your brief that it could easily be done is that the choosing of the jury a ministerial act by someone on the street. to me, that means that when you have a duty imposed by law, picking a jury they said was ministerial, imposed by law,man street or the president or the judge, and you can be held criminally liable, and this is how i read if not marbury the

progeny that is that you cannot stop an official act. you have the say was it is discretionary official act or was it a ministerial act? >> i agree with that characterization of marbury and that distinction is president marbury, itself, and i respond to say that extension has not been extended up to the president for good reason, because over 200 years the court said that we cannot sit over the acts of the president because for instance -- >> we don't have -- >> that is correct, it has not arisen until this case, that is correct. but looking at every civil context they have said what you keep in mind what chief justice marshall said, it is never examinable, and no judicial proceeding that the president said this and we will sit in judgment by that which is reinforced by mississippi versus johnson and swanigan and we cannot enter a declaratory

judgment over a president where the distinction of ministerial and discretionary has been held totally in respect to subordinate officers all of the way to marbury, but nothing in relation to trump could be described as ministerial to the government responding to widespread fraud and abuse and malfeasance in a election, and matters of that matter are not ministerial at all, and even if that distinction goes all of the way to the president so to speak it is not in the indictment, itself. >> and why isn't it his constitutional duty to take care of the laws to be faithfully executed requires him to follow the laws every onwone of them. >> i would say that following duties of the take-car