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-care of laws

are inherent in marbury versus madison are like delivering a seal when requested, because there is a separate statute, and the secretary of the state had two of the hats on and he was on one hand the direct agent of the president, and that could never be examinable by the courts, but on the other hand, the original statute had imposed all of the purely ministerial duties that had to do with the recordkeeping and delivering of documents and if you had a land deed that had a seal on it, and the person asked for it no, discretion at all, but the take-care clause, there is no statute that could impose on the president, a, a mandatory duty to engage, and the notion that when the president is meeting with the department of justice and enforce federal fraud statutes and that being ministerial strikes me as insupportable. >> well, i think that you are missing what i am asking. which is, i think that it is

paradoxical to say that his constitutional duty to take care of the laws be faithfully executed allows him to violate criminal laws. now, we are at the motion to dismiss stage, the government has charged a specific criminal laws, and we have to assume that they are true. >> i mean, my response to that is to emphasize what chief justice marshall said in marbury, they cannot be examinable by courts and that includes a criminal proceeding. >> i thought that you agreed with me that we have gotten beyond marbury that official acts have been subdivided into discretionary and duty-bound or ministerial and in the ministerial or the duty-bound that at least with respect to legislative, and even legislators and judges they have

been held criminally liable, and that's in the face at least with the respect of the legislators of an explicit constitutional privilege. >> i don't view the united states versus johnson or ex parte of virginia as discretionary distinction and what johnson says is that it does not say, hey, when you were doing these other things that were ministerial, it is legislative acts, it is drawing between legislative and nonlegislative acts and that is the right reading of ex parte virginia and they go on the say judicial acts and the argument of picking a jury and they don't use the words to my recollection ministerial -- >> that is because they were criminal acts and picking the jury picked on race is a criminal act, and whatever johnson did, and i believe it is the very same statute fraud against the united states that is before us today. >> and i would say that distinction in those cases is in the judicial case johnson led

the -- sorry, the legislative case is johnson is between ledge s slaytive acts and nonlegislative acts and this is judicial and judicial acts and this is presidential and nonpresidential acts and everything in the indictment is nonpresidential acts. your honor, i see that -- >> may i? >> there are a number of precedents or cases that the supreme court has reviewed cases of the president, and the case of youngstown where the supreme court reviewed harry truman's seizure of the steel mills in the korean war and the case of little bahrain where president johnson restricted the vessels, and where there were nationals from certain nationals of

foreign countries and how does that square with the position that the judiciary cannot review the presidential action. >> all of those are fall with the exceptions of the ex parte of young, and those are judgments against subordinate officers -- >> these are presidents. harry young was president when he seized the steel mill and how does that comport the theory? >> he was the secretary of the commerce and not the president, and this court has confirmed recently that you cannot issue an injunction against the president and the court does not have the authority to do that as with the robertson, and the court -- >> and they can review presidential action if on paper they direct their judgment to a subordinate officer -- is that what you saying? because these are presidential actions. >> the court can enjoin the acts of a presidential actions with

young -- >> i am asking a different question, because these are presidential decisions and presidential actions and you are saying that the court can review the presidential actions as long as if they issue a judgment it is -- >> if directly sitting in judgment and it is official that has been established for over 200 years. >> you are using the impeachment judgment clause as a negative implication with respect to that civilian officer or president of course has to be impeached and convict and then nevertheless thereafter. if there is an acquittal, how are you using it in that regard, because sometimes in particularly in this case, the acquittal cae of lack of jurisdiction and not trying the mer merits of the case? >> the impeachment clause does not arise within the merits of the case or the acquittals and frankly, it comes up under the prosecutions of the double

jeopardy clause of the determination of the defendant's guilt is not factually guilty and this is emphasized in the aoc memo that they emphasized that directly that the memo says that it is distinct from the merits, so it does not undermine the double jeopardy force so to speak of the double jeopardy claus. >> and one of them is that jack smith is inadequately appointed. >> that is a powerful question, but it is not raised at this time. >> and in the case of blazingame. i want to stay away from that and say ministerial or

discretionary and i want to say office siege versus officeholder, what is your position of would we have to remand it for the district judge to have to decide in the first instance whether these various four points that the defense has made against imposing criminal liability hinge on whether the acts are ministerial, discretionary, private or however you want to categorize it. >> i would use clinton versus jones is purely private conduct is what is judicial conduct after a president leaves office. and our position is that the indictment is to be dismissed because we acknowledge that the judicial court did not reach that in blaisingame and in the

doctrine of immunity in the first instance and that would be a natural thing for the court to do. >> in the specific -- >> yes, if the court holds presidential immunity, then it should be remanded to the district court and then go through the indictment and find factual findings to decide how it applies to the findings, and the court has the authority to do that. if there are no more questions? >> i have one more, and if there are the framework of nixon versus fitzgerald, we are to conduct a balancing act of the asserted immunity versus other public interests, and i see you as trying to represent a need for the executive to have this immunity to facility executive functions, the ability to act without hesitation, to be fearless, to make decisionmaking, to make

decisions without being inhibited without the fear of criminal prosecution, but it seems to me that there are other article 2 implications here prevailing. it seem under article 2, there is an executive vested clause, and that the executive branch as an institution to have constitutional executive power vest in a newly elected president. there's also an executive interest as an institution in law enforcement in enforcing criminal laws, and so it seems to me that if we are weighing executive interests versus public interests, and public interests like the integrity of an election that president trump's position is not fully aligned with the institutional interests of the executive branch, and in this balancing

test that weakens the executive power that he is trying to assert. >> i say three things in response to that. first of all, nixon versus fitzgerald emphasizes the most compelling of what is policy considerations that are rooted in the separations of powers is the rendering of the executive branch official undual cautious, unduly cautious in the highly contentious decisions that come up all of the time. if the president has to look over their shoulder every time he or she has to make a controversial decision every time they have to make a decision, that is going to hind ter power of the president. >> and i understand that, that is one interest, but there are other article 2 interests at play here, too, and they seem to be counter vvailing, the interes

of the article 2 interests -- >> the balancing of marbury and to the extent that the court is reaching policy considerations of the court those are decisively outweighed by the sort of the republic shattering consequences of subjecting chief executives in an endless cycle to prosecution once they leave office. the founders were very much against that and deeply concerned with that, and you can see it in hamilton's writings in federalists 67, 68, and 69, and you can see that in the other writings of the meaning of the constitution. >> do you think that we should -- it occurred to me. do you think that we should take any cognizance of the fact that when they wrote that george washington was the president, and albeit a very, very strong executive that congress was

brand-new and everything else was brand-new and things have balanced out. we have a strong congress, and we have a strong judiciary and we have a strong president. >> i think that if you are looking at the writings of the founders they were definitely looking past the presidency of george washington an iconic figure and looking past the presidency of george washington and future of presidencies and correctly anticipated that the nation might, and deeply concerned about that the nation would devolve into factions, and factions that did not govern the presidency of george washington because of the moral authority, but when you got to adams and jefferson, they evolved into factions that were deliberately looking past that presidency to the republic that stood for over 200 years and just in the last year that was shattered by the presidency of president trump, and if the court has no further questions, i would ask the court to reverse and if you rule against us, we ask you to stay

the mandate to allow us to seek a mandate against the supreme court. >> and if you will give us five minutes. >> thank you, your honor. >> okay. mr. pierce? >> good morning, and may it please the court. never in our nation's history until this case has a president claimed that immunity from criminal prosecution extends behind his time in office. the president has a unique constitutional role, but he is not above the law. separation of powers principles, constitutional text, history, precedent and other immunity doctrines all point to the conclusion that a former president enjoys no immunity from criminal prosecution. at a minimum, this case in which the defendant is alleged to have conspired to overturn the results of a presidential election is not the place to

recognize some novel criminal immunity and i want to start with jurisdiction as judge childs raised. it is our view that the court has and should entertain both claims before it. with respect to the immunity claim, i think that this court's decision in cisnernos ten years after midland asphalt did allude to a type of separation of powers claim that involved presidential immunity and judge henderson pointed out that the supreme court, itself, has acknowledged the idea of explicit guarantee is more of the suggestion than some statutory prescription -- >> but there are no cases since then that have used the word suggestion to follow up on that line of thinking. >> within the supreme court, i don't believe there have been cases, but certainly, this court in cisnernos and in cases posting midland versus asphalt, and rose versus doskowski and

dernberger when talking about immunity is which a appellant jurisdiction of collateral order are in theory. >> and other circuits, 1st, 2nd and 10th are following that thinking of midland and asphalt which follow the explicit constitutional statutory language that says you cannot be tried. >> two, in cases like cisnernos, this court has spoken otherwise, but nonetheless, one there is the 1st circuit of joseph where a judge is seeking a criminal, or raising an immunity defense to a criminal prosecution as this court acknowledged in both i believe rostenkowski and durrenberger and the court talked about claiborne and hastings which are 9th and 11th circuit cases noted that with personal immunity like that, it is different than the

transactional immunity than in the 10th circuit cases, and at the end of the day, we do sort of a small point of common ground between us and the defendant, we do believe that with respect to the jurisdiction, there is a little bit of different inquiry of the president, and we don't believe it carries over to the merits in the least, and the united states versus nixon is the perfect example of that, and there, the court said it is unseemly to hold the president, and to require the president to go into con contempt, and nonetheless reaching merits rejected president nixon's absolute executive privilege claim and required -- >> you didn't stee a distinctio of the civil and criminal cases? this is a criminal case. >> rose said as much in talking about civil and criminal in respect to speech and debate. i know that nixon and fitzgerald is a civil case and we strongly disagree that it should be applied for many of the reasons

that judge pan set out, but with respect to the immunity and given the language in rose it would supply the basis for the court to apply the immunity claim. >> why aren't you taking position that we should dismiss this appeal because of the interlocutory, because it should advance your interests? >> our interests are twofold as in the united states versus nixon, it is doing justice and in the second, it is indeed to move promptly to satisfy and vindicate the public and defendant's resolution of the trial, but doing justice means to get the law right, and it is our view that even if a dismissal on the jurisdiction might move this case faster and empirically, it is hard to know, but it is not the right analysis on immunity or the second claim. >> we have a line of cases including cramer versus gates and american hospital association versus azar, and it says that we can assume

hypothetical statutory jurisdiction and reach the merits of the case. statutory jurisdiction being distinct from article 3 which we cannot assume, because it requires power of the court to ang act, and so if we could dismiss this under the merits of midland asphalt which is a strong case for appeal for interlocutory and it does not fall under the collateral order doctrine, and how should we exercise the doctrine of whether or not we should reach the merits? >> so i think that in the american hospitals 2020 decision, the court said that the formulation is that we are doubtful as to the jurisdiction, but nonetheless, invoking line of cases that you have just described went on the decide the merits, we would urge the courts do the same here even if it entertains doubts with respect to jurisdiction and hypothetical

jurisdiction is allowed by the law to reach to the merits. >> isn't that a hypothetical decision and hypothetical opinion. the supreme court has said that. >> no, the steelco is the hypothetical jurisdiction doctrine, and if this court were to dismiss for lack of jurisdiction, and then say, nonetheless, as an alternative holding, here is how we would come out on the merits, that i think that is improper, and i think that is what i understand the oversight brief to be on the footnote on page 20 of the brief is something that the court could do, but i understand that the hypothetical jurisdiction is allowed for the court the say, you know, what this is hard and maybe arguments on both sides, and we think that there is, we assume the hypothetical jurisdiction and we decide the

merits. >> let me ask you about marbury versus madison and what is your interpretation of the progeny or the case, itself? >> so, our interpretation is more in line of judge pan and yours, in that it does not erect an unreviewable power of the presidency and sort of the prime example of that is the steel seizure case, the youngstown case, and that is president truman closing steel mills, and the court coming in to review that. we see it all of the way through to the present, and so it is hard to see any world in which the court just says, you know, we can't intervene here. we do see the judge henderson's distinction between ministerial a acts and the discretionary call, because it is something that i

fully endorse or agree with the paradox of the president's on the one hand having the article two take the responsibility and on the other hand seeing the law as compliance of the law as optional. >> let me switch and ask you how do we write an opinion that would stop the floodgates? your predecessors in the loc opinions recognize that criminal liability would be unavoid ably political. >> i think that with a sitting president, the analysis is different from a former president, and loc on the -- sorry? >> with respect to being necessarily political. >> well, i think that there is a political process that is impeachment and we can talk

about that, but there is a legal process that is decidedly not political and this is the process with the safeguards that couple of the members of the court have already referred to. we are talking about prosecutors who are, you know, follow strict codes and are presumed to act with regularity, grand jurors and petit jury and the supreme court above it, and i want to talk about the floodgate and since watergate has there been societal widespread recognition including executives and president, that the president is subject to criminal prosecution, and nixon was about private conduct, but about using cia to interfere with an fbi investigation and then accepts a pardon understanding that after having resigned, and again, that is undermining this impeachment

first argument. after nixon, we then see a series of independent and special prosecutors investigating a range of different types of conduct. you saw independent counsel lawrence walsh in the iran contra affair and this is what the defendant invokes in the reply brief and in chapter 27 of that report, the independent counsel assumes that president reagan is subject to prosecution, and he says that we did not get there evidentiarily, and we thought that there was immunity and it has continued through to the present and so this notion of a floodgate, i think that, again, the careful investigations and the clinton era didn't result in any charges. the fact that this investigation did, doesn't reflect that we will see a sea change of vindictive tit-for-tat prosecutions in the future. i think that it reflects fundamentally unprecedented nature of the criminal charges

here. never before has there been allegations that a sitting president with private individuals and using levers of power sought to fundamentally subvert the democratic republic and electoral system, and frankly, if that fact pattern arises again, i think it would be scary if there were not some mechanism to reach that criminally. >> and in your brief, you raised some sort of lesser immunity potentially applying. do you want to speak to that? >> i do. we think it does not come into play here, but the point is that in some sort of more challenging cases, it might be that where a president is operating under extraordinary time pressure has to make a very difficult sort of national security-type decision, and do i go in commit this kind of, do we ord ear drone strike under these circumstances, you know, a president will have a

cadre of lawyers to advice him or her and they will say madam president, we will get you a memo in two months, and this is not enough in that situation, but if there were a drone strike and civilians were killed that is theoretically subject to some prosecution as murder, and i think that might be the kind of place in which the court would properly recognize some type of immunity, but that is of course nothing like what we have here. i sort of take the former official's vesting clause to talk about the nature of charges when they focus on again subverting the electoral process and at a minimum there should be no type of immunity that covers that. >> you are saying a case-by-case balancing of immunity or how does that work as a legal standard? >> we think it should be as the district court held finding -- there is a balancing under fitzgerald, and that is our view. you start with the question of what are the burdens against the

presidency and what are the interests to be furthered. the answer to that question under fitzgerald, we think that the burdens that my friend talks about on the other side are overstated, and i am happy to describe why, because we believe that the interests of the public in ongoing prosecution means that there should be an across the board rule that a former president is indeed subject to criminal prosecution. what i am describing in response to judge child's questions is that in a particular case might there be some extraordinary circumstance where a president, a former president could invoke an immunity, maybe. i don't think that the court has to reach it there, but the court could route in an opinion saying based on the nature of allegations that we base as true, it could be routed in here, and it does not have to be case by case, but it could be

circumstances that gives one pause about future facts. >> and what is a question i posed to opposing counsel, might we look into the broader question from judge chuckin in regard to absolute immunity for criminal prosecution of criminal acts versus this indictment and accepting as true the allegations brought there or both? >> we have a strong preference that the court adopts former view and looks at the question in the way of, as the district court did. which is to say, based on questions of separation of powers, of constitutional text, history, precedent, is there in fact immunity for a former president? we think that the answer to that is no for all of the reasons that we put in the brief, and i'm happy to address here. candidly, i think that if the court gets to the second

question, there are hard questions about the nature of the official acts, and frankly, as i think that judge pan's hypothetical described, what kind of world are we living in as i understood my friend from the other side to say here, president orders the s.e.a.l. team to assassinate a political rival and resigns before an impeachment, not a criminal act. the president assails a pardon and resigns or not impeached, not a crime. i think that is extraordinarily frightening future, and this is the kind of the, if we are talking about the balancing and the weighing of the interests, that should weigh extraordinarily heavy in the court's consideration. >> what about the effect of blasingame, and how does it either bind us, and how is that persuasive for us? >>, so i think that it formally has no application at all, because of course very early in opinion the court says that we are not dealing with any

questions of immunity in criminal context. i tend to agree with my friend on the other side that in many respects it does reinforce the nature of the fitzgerald outer perimeter standard saying that you don't look at intent or you don't look at purpose, because content is playing a role of the content of communications, and the signature change is the acknowledgment of the looking at a president whether that president is acting in his or her role as office seeker or officeholder. again, to go back to my response to judge childs' question, although it would change the nature of whether or may change the nature of whether certain things are or are not certain acts in the indictment, we think it is entirely the wrong paradigm to use, and in fact, it would be inconsistent with the fitzgerald's reasoning, and also, irreconcilable with the way that criminal law works. to say that we won't take

account of motive or intent, and there are plenty of acts that everyday -- for example, if i were to encourage someone not to testify at trial because i wanted to go on a hike with that person, it is not a crime. if i encourage someone to go on a hike, because -- sorry, to encourage them to skip their trial testimony because their testimony were to incriminate me, it is the same underlying act, and when you map it on to presidential context, you will come up with the frightening hypotheticals as long as something is plausibly official, even if it involves assassinating a prominent critic or business rival, that would seem to then be exempt potentially from criminal prosecution. we certainly would not concede that if that is the world we want to live in, and we would advance plenty of arguments below, but to those arguments

themselves they would create satellite litigation additional reason not to go down this route. >> and looking and thinking about the answer of potentially not looking at motive and intent, when there is a criminal prosecution, that mens re is criminal charge. >> yes, that is the as i understand how fitzgerald outer perimeter might work, it says those types of official acts or conduct and that something from which the president is immune and you don't get to the second question of, well, did that person act then with mens rea and can we prove it under a theory available at trial, because there is no way to reach that conduct. >> but looking at the indictment back to judge henderson's question of blasingame there was

some in the question of the office seeker versus office holder, and so do we use the blasingame for that? >> if this court decides way the district court did, then blasingame does not have a role at all, because if this act is official or set of allegations are official, then the question is based on the fitzgerald analysis and history precedent, et cetera, and is there any quantum of immunity for a former president, and we believe that the answer to that question is no, and the reason of the district court then to turn to the indictment and consider this outer perimeter, civil outer perimeter. >> and do you believe they should decide the way that the district court -- >> i suppose that -- >> i mean on the blasingame did.

>> and to pick up on my response to judge childs, we certainly stand by our review in the brief that some substantial number of allegations would fall outside of the outer perimeter and this is i think enough to affirm, and i think that either parties are urging the court then to send it back to the district court which then is going to create a series of challenging questions i mentioned earlier which are what are the evidentiary theerories that evidence could come in, and it is our strong view, and if the court were to follow that route, which we urge the court not to, which is to make clear that the immunity is and on/off switch. if the court is to affirm, send it back and no immunity, and then other things are evidentiary questions of jury instructions which any appeal is then an appeal from the final judgment if any final judgment. >> and the immunity defense is

never lost? >> well, i don't think it is immunity at that point. this court will in what i have described have said that there is no immunity and maybe some other types of challenges as evidence comes in at trial, but again, that would lead to this extraordinarily complicated litigation that is not the top line reason, but among the reasons that the courts should not go down that path. >> since president trump concedes that he can be criminally prosecuted in some circumstances if he is first impeached and convicted by congress, do you agree that this appeal largely boils down to whether he is correct in his interpretation of the impeachment judgment clause, and that is, if he is correct that the impeachment judgment clause includes this impeachment first rule, then he wins, and if he is wrong, and if we think that the

impeachment clause does not contain the impeachment-first rule, then he loses? >> i think that is basically right. the defendant's theory over the course of the litigation has ev evolved a little bit and before this court i understand the argument to be the principle submission to be as you have just described this what we call in the brief the condition precedent argument that there is only liability, criminal liability for a former president if that president has been impeached and convicted. that is wrong for textural and a host of practical ones whichly start with to amplify the point. it would mean that if a former president engages in assassination, selling pardons, these kinds of things and then isn't impeach and convicted, there is no accountability for that individual. that is frightening. now, to go back to some of the

textural and historical and my friend on the other side says this is what the founders were talking about and working towards and that is basically no discussion of the impeachment clause which i take opposition of my friend, and what that impeachment clause did is two things, it constrained the sanctions that congress could place on an impeached and convicted officer, and not only a president, but any kind of officer to removal or disqualification, and then it made clear that the impeachment did not impose some sort of precollusive bar of some criminal prosecution. and you would think that if there were this impeachment-first bar, you might find something somewhere in the sources that the framing, the convention in philadelphia, the

ratification discussions, and there was nothing in that, and we have cited certain things in the brief from james wilson and edward pendleton, and justice story, and nothing from hamilton, and all that hamilton was describing is the undisputed point that a sitting president cannot be held for prosecution and removal of office and whether that removal is impeachment and conviction or simply the end of the term. now, a structural point as well that i want to make that the district court made is if this rule were right, and if the precedent rule were correct, it would pose significant separation of powers, because if congress had acted and all sorts of reasons that congress won't act because one, they would not believe it is required and also

in certain instances they may decide that they don't have jurisdiction, and many of the members of congress seem to hold that view with respect to the defendant's second impeachment. >> all right. >> thank you very much. >> go ahead. >> thank you, my honor, in the limited time remaining i want to make three points to the opposing counsel's remarks. saying above the law, that immunity would place the president above the law, and i want to say what the supreme court said to nixon versus fitzgerald that they said that allegation of immunity sets individual above the law as rhetorical chilling but wholly unjustified and the separation of powers and the investment

clause and the impeachment clause are the foundational law of the country and the president's immunity is based on that and that is more morality than reality as said in nixon versus fitzgerald. and as the indictment is alleging solely criminal act, and it does not say that he did anything after office, and it is solely in office, and that is a telling indication it is official acts here. and so finally, judge henderson, your question in reference to the floodgates and tie that to opposing counsel's frightening future, and the frightening future of presidents seldom prosecuted if they were impeached is the one that we have lived under for 200 years is not a frightening future, but it is the one we have lived under 200 years, and his frightening future is the one that is a chief opponent winning

in every poll for the upcoming election each year and is prosecuted by the administration for which he is polled to replace and that is what is frightening. >> and if you have impeachment, conviction, and then the president either resigns, remove and then later on is prosecuted for a different crime. can that happen or immunity there? >> i am not sure i understand the hypothetical, can you say it again? i apologize. >> just indicating that if you are resting on there must be impeachment and conviction for one set of crimes and then the president is removed from office or resigns and later on there's a prosecution for something different, is there immunity for that later crime? >> yes, i think that is the -- and obviously not presented in this case, because we have close match of conduct and other

conduct in the later krarticlesn the acquittal which is the strongest case of double jeopardy, but if there is unrelated -- >> well, you just made a statement of he is only prosecuted for crimes while in office. and so that is why i am asking about leaving office and then thereafter being prosecuted for something different. >> the point is actually that the best reading is impeach and convicted for the prosecution. and if he were impeach and then removed from office and then concon vi convingt -- convicted for something else unrelated to office, that is under marbury. >> i want to confirm. your position is that if president trump had been convicted after his impeachment trial on incitement of insurrection and he had been

convicted, then this prosecution would be entirely proper? >> which i would say that if you were impeached and convicted for the similar conduct and -- >> is that a yes? because i think that you said in the brief that impeachment for incitement of insurrection is the same that is in the indictment? >> yes, i agree with that. >> and so if he had been convicted by the senate, then this prosecution would be entirely proper, correct? >> not phrased that way, because there is other problems with this prosecution as raised in the district court. he could have been prosecuted -- >> under the impeachment clause, if he had been convicted by the senate when he was impeached for incitement for prosecution, then this impeachment would be

properly brought? >> i want to be clear about this. i am not making any concession that this -- >> okay. one more time. under your interpretation of the impeachment clause, if president trump had been convicted after he was previously impeached on similar or related conduct which is in this indictment, the government could have properly prosecuted him for the same or related conduct -- yes or in? >> potentially provided it is qualified with all other legal doctrines violated in this case. >> i am asking you under your interpretation of the impeachment clause, is that proper? is that allowed? >> i stand on the prior answer, i think that we are -- >> i understand that it might be other reasons why you would challenge this prosecution, but based on your interpretation of the clause, this prosecution would be properly brought? >> if a -- again, i would not say this prosecution, and let me

be very clear of this. >> same or related conduct? >> this prosecution which has many issues related to it, i would say that the impeach mmen clause for a president who has been impeached and -- >> okay. a hypothetical. say a president has been impeached by incitement of insurrection of the same allegations of a criminal indictment, and he has been convicted, then the government could bring a prosecution for the same or related conduct, is that correct? >> i don't disagree with that. >> that means that the conduct that is same or related, even if it is official, he could be prosecuted for it, correct? >> with same or similar conditions. >> and my question is after the fact, and the reason i state that and even though you are challenging that the actions are only occurring while president, the district court's decision is

that there is no presidential immunity for prosecution for official acts, but it does not put a time frame in there, and that is why i am going to beyond the investigation or the prosecution may not come until later after the president has left office, so you are telling us that we are left to a time frame? >> the time frame is left for marshall versus reagan and madison never examined by the courts, so unless there is that one gatekeeping incident that has to occur which is impeachment and conviction, there is no separation of powers and the executive investment. >> and that means that impeachment proceeding occurs as we discussed because not all officials go through the process. that is a judgment call as to whether the process would be called. >> we have two arguments that reinforcement each other. no impeachment or conviction,

then the official acts are immune, period. further, the impeachment judgment clause incorporates a doctrine of double jeopardy that prohibits it especially in the case of acquittal, and reinforcing doctrines that are set forth in the constitution. no other questions, we ask the court to reverse. >> okay. thank you. you know what, we are now hearing and we have heard for better part of over an hour now, kaitlan, and we are hearing from the appellant court in a very consequential case today involving big question whether a president of the united states, a former president will experience immunity for what they did while they were in office, and we went through a whole lot of very interesting points, and a very major concession made almost at the beginning of the entire discussion was that the counsel for donald trump's legal team d.

john sauer sthad a president could be prosecuted under certain circumstances, and not a k case of absolute immunity, but the condition for you at home, if that president were impeached and if that president were convicted, that would be a singular way for the president to be prosecute and that is a huge "if." >> and also, they argued that a sitting is president could order his political opponents to be killed or to be murdered and they could not be prosecuted for that unless they were impeached and convicted by the senate. i mean, elie, what did you make of the three-panel judge in a fascinating back and forth. >> we have that clip. >> and a real twist. donald trump's changed the brief, and the doj said that they have evolved, and donald

trump's team made it harder than they needed to, and quote, what a different federal judge said that you climbed out on the limb than you need not have, and now you are in the process of sawing it out, and now an awkward difficult to reconcile that the only way they have argued that a president or former president could be criminally prosecuted is if he is impeach and convicted by the senate, and this is leading to bizarre scenarios like you pointed out, what if the president ordered the assassination of a political rival and not impeached. >> it is so poignant, that judge florence pan said, military secrets and selling pardons and a litany of questions. listen. >> if the president ordered seal team six to assassinate a political rival. >> he would be speedily impeach

and criminally prosecuted. >> but if not, there would be no criminal liability? >> and in madison and our constitution discretion and the impeachment clause all clearly presuppose what the founders were concerned about -- >> i am asking you yes or no question. could a president who ordered seal team six to assassinate a political rival who was not impeached, could he be subject to political prosecution. >> if he were convicted and impeached first. >> the answer is no. >> the answer is qualified yes. >> i mean, we are all at that point, we all in the room kind of sat back for a second, because first of all to take a confession of any kind is major, but when you are hearing that trying to go through the hypotheticals and trying to follow that thread of common sense and logic, what struck you about that moment where he essentially has a qualified yes

that a president could actually order the assassination and if he is not impeached and convicted immune. >> he is trying to make the argument for jack smith, and this is what jack smith is warning about, are we a country of represents or kings. and trump's lawyer is saying we are a country of presidents and the president can act as he wants or chooses and we have violence. we have violence of january 6th, but the president himself can direct that violence openly and using the official government resources and this is fine. i think that what it does is to establish how dangerous this presidential immunity argument truly is, and to your point, elie, we could have had the original argument speaking about the outer perimeter. hey, i was doing my job, and to protect me and the institution, i should be given the coverage the same way the presidents get the civil immunity and we should

go further, and when the president is not upholding and faithfully executing laws and in that scenario, he is covered and breaking law, he is covered and no one gets to sit in judgment over the president, and the danger was seen by the court today. >> and skepticism today, from what we pexed expected, but jud henderson, three appointed by a republican president said at one point that said it is paradoxical that the constitutional duty to be taken care of the laws to be executed allows him to be able to violate criminal law, but judge pan said that not the understanding of the senators, because when trump was impeach and went to the senate, a lot of them including mitch mcconnell, it is something for the courts to take care of and something to be handled in a criminal prosecution or could be handled in that way. >> yes, and there are two different talking points, and the problem of the argument of trump's lawyer said it has to be

an impeachment and conviction, and it can lead to absurd results. impeachment is different, because impeachment could be political and based on a number of factors and this is a different ball game altogether than a decision to prosecute and eventually convict somebody, and the thing that i keep coming back to, they had an easier way, and trump's team had a better way and they briefed an easier way, and they just said that what he is charged with is the scope of the outer perimeter of his job as president, and if they stuck to that, i still think they would have had a losing argument, but not a preposterous argument and stronger case to make. >> well, first of all, think about this, what that would suggest is as long as i can hide my behavior long enough to be in office and avoid impeachment, i can get away with anything i want and all i have to do is to not have transparency and eyes into what i am doing, and what i have to do is what i know about

the behavior and if the house brings impeachment articles and moment to conviction and trial and if i am the president of the united states, i have to bide the time, and that is part of the argument, but there is a moment when the counsel, i mean, the special counsel from doj spoke about this issue, but i want to go back to a second for the lawyer of trump, because in the sound bite here, he talks about the idea that the notion for a criminal immunity not existing is a shocking holding. they are standing tall and saying, look, there has to be some level of immunity, because we are talking about president biden and other people. listen to this. >> to authorize the prosecution of a president for his official acts would open a pandora's box from which this nation may never recover. could george w. bush be prosecuted for obstruction of a proceeding for giving false information to congress to induce the nation to go to war

in iraq under false pretenses, and could president obama be potentially charged with murder for authorizing drone strikes on citizens abroad. >> that is the question that trump was raising of what is to be if you open up this pandora's box politically, then everyone is fair game. >> then the argument that james pearce made is that then it would open up presidents to commit a whole host of acts to get away with it. >> both sides are opening up a slippery slope there, and the argument from jack smith side, and speaking of history there, and there is a whole lot of talk from the past and the talk of president nixon who engaged in

the conduct and what did he do? he accepted a pardon and he talked about how we have iran contra investigation, and we have ronald reagan and nobody thought that he could not be prosecuted. so i think that the slippery slope argument, and there is something there on both sides, but importantly, that is the nature of all prosecution, and we have both been prosecutors and for the system to work effectively, you have to have the prosecutors to act with discretion and perfectly and true for every scenario for the everyday americans and presidents and that faith in the system, it has to make sense no matter the defendant, so it is not especially strong argument to say that someone could abuse this, because we have courts to review the indictments and we have standards and burdens of proof and reasonable doubt for a trial, and we have other fail sa safes that is not a rogue prosecutor to go after it, and

so jack did have the better argument there. >> and ministerial and -- that is what everybody was saying, just say it, whether it is his actions around january 6th were official acts and they were talking ministerial and discretionary and take-care clause, and this is the president has the duty to ensure that the laws of this nation are executed and enforced. but this idea, elie, of what he is doing is official or rogue in some way plays very big in this case, and it could end up back before judge chutkin. >> yes, and before the united states supreme court as well, and that is what it looked like the argument was going to be. was trump's conduct around

january 6th inside or outside of the scope of his job. that is what is laid out in the indictment. and the attorney puts out a spirited case, he was speaking with election officials and using powers under that take care clause which is a broad power of the president to make sure that the laws are properly enforced and therefore he was within the job as president. if this case goes up to the supreme court, i think that they will be looking at that question. >> and what they both made clear today, trump's attorneys and the attorneys from jack smith's team is that they want this court to decide the merits of this case. they don't want it to be delayed until later. a lot more the breakdown from what we listened to an incredibly fascinating argument. elie and tim will be back with us in a moment. we are continuing to look at what we heard from the three judges, including that remarkable argument from trump's team that presidents cannot be prosecuted unless they have been first impeached and then

convicted on capitol hill. more on the legal arguments. we will take a quick b break an back in n a moment. .