c-span, where history unfolds daily. in 1979, c-span was created as a public service by american's table 2 -- cable television companies. today we continue to take you to congress and other public policy events in washington, d.c. and around the country. c-span, powered by cable. on thursday, c-span will commemorate the 80th anniversary of d-day, when u.s. soldiers stormed the shores of normandy, france, marking a pivotal moment in world war ii. watch our all-day coverage beginning at 130 a.m. eastern at a ceremony from normandy featuring a speech by president biden. and then live, on washington journal, we will take your calls reflecting on and remembering d-day. then at 10:00 a.m., join us for a ceremony at the national world war ii memorial in washington, d.c., followed by a remembrance ceremony at the d-

day memorial in bedford, virginia at 11:00 a.m. eastern. and for the rest of the day, stay with us as we continue to commemorate d-day, with a look back at past presidential speeches and other special programs. watch c-span's all-day coverage, marking the 80th anniversary of d-day, starting live at 6:30 a.m. eastern on thursday, on the c- span networks. up next, the u.s. supreme court hears oral argument on whether former president donald trump is immune from criminal prosecution, for his alleged role in trying to overturn the 2020 election results. this case is in response to a federal indictment from special counsel jack smith who charged the former president on four counts in august 2023. the justices have until june to issue a decision. this is just over 2 1/2 hours. >> we will hear argument this morning in case 23 939, trumpers versus united states.

mr. sauer. >> mr. chief justice, and may it please the court, without presidential immunity from criminal prosecution, there can be no presidency as we know it. for 234 years of american history, no president was ever prosecuted for his official acts. the framers of our constitution viewed an energetic executive as essential to securing liberty. if a president can be charged, put on trial, and imprisoned for his most controversial decisions, as soon as he leaves office, that looming threat will distort the present's decision-making, precisely when bold and fearless action is most needed. every current president will face de facto blackmail and extortion by his political rivals well he is still in office. the implications of the court's decision here extends far

beyond the facts of this case. could president george w. bush have been sent to prison for obstructing an official proceeding or allegedly lying to congress to induce war in iraq? could president obama be charged with murder for killing u.s. citizens abroad by drone strike? could president biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies? the answer to all these questions is no. prosecuting the president for his official acts is an innovation with no foothold in history or tradition and incompatible with our se constitutional structure. the original meaning of the executive vesting clause, the framers understanding and intent , and unbroken historical tradition spanning 200 years, and policy considerations rooted in the separation of powers all counsel against it.

i welcome the court's questions. >> to your last point, could you be more precise as to the source of this immunity? >> the source of the immunity is principally rated and the best in class. >> how does that happen? >> reporter: the source of it, justice thomas, i think is as you described, your separate opinion. the executive vesting clause does not include only executive powers laid out explicitly there in but encompasses all the powers that were originally understood to be included therein. l but against medicine itself, provide strong evidence this kind of immunity abroad that protects the president's official acts directs sitting judgment, so to speak, of the article three courts, that matches the original understanding. >> but how exactly would be determined what an official act is?

>> i point the court to two cases for that. obviously, fitzgerald against nixon is the best diet. i looked at the level of specificity in which the acts are described. in that case, the simple case. here would be the indictment. >> what if you have, let's say the official act is appointed to ambassadors and the president appoints a particular individual to the country, but it is in exchange for a bribe, somebody says i will give you $1 million or whatever, how do you analyze that? >> i think that would fall [ inaudible ] also matches the court with common-law background. the way that this court and brister kind of sliced at the joint was to say excepting the bribe and agreements to accept the bribe are not official acts. [ inaudible ] essentially an unrestricted willpower of this

court that congress couldn't directly regulate >> excepting the bride is an official act muppet appointing the ambassador is within the official responsibilities of the president, so how do your official acts come into play when it is going to be official, assuming that the president is innocent, but the question is going to be whether he is found guilty. >> again, i think brister and johnson do address that in a slightly different context, brewster and johnson said he indictment has to be expunged of all the immune official acts. there has to be a determination of what is official and not official. >> [ inaudible ] they're supposed to not say what it is for? es because the what's four-part is within the president's official duties? >> there would have to be independent source of evidence for that, and keep in mind that

this indictment charges what this court has described as unrestricted powers of the president, so the logical premise of this indictment is that congress bypassing bid and general criminal statutes has purported to directly regulate the president's exercise, things like the exercise of the appointment and removal power, things like his ability to speak directly to the american public are exercises of his authority under the recommendations causeded to ' recommend a congressman, the measures he thinks necessary and expedient. so, you have an indictment in this case that goes right to the heartland of the president's powers that alleges a whole series of official acts, and tries to tie them together, i think there is a private and or a private purpose in that case, that is the situation -- >> council, it can be alleged, but it has to be proven. [ inaudible ] a concept long viewed as appropriate, there are some things that are so fundamentally evil that they have to be protected against. now, i think -- and your answerr

below, i am going to give you a chance to say if you stay by it, if the president decides that his rival is a corrupt person and he orders the military court orders someone to assassinate him, is that within his official acts for which he can give immunity? >> it would depend on a hypothetical, but that could well be beneficial. >> it could, and why? because he is doing it for personal reasons. he is not doing it like president obama is alleged to have done it, to protect the country from a terrorist, he is doing it for personal gain, and isn't that the nature of the allegations here?on that he is not doing them -- doing these acts in furtherance of an official responsibility,

he is doing it for personal gain. >> i agree with that characterization of the indictment, and that confirms immunity, because the characterization is that there l is a series of official acts -- >> no, because immunity says even if you didn't for personal gain, we won't be responsible. what do you -- how could that be? >> that is an extremely strong doctrine in this court -- >> we go back to justice thomas's question, which was where does that come from? there are [ inaudible ] here who tell us that the founders a actually talked about whether to grant immunity to the president. and in fact, they had state constitutions that granted some criminal immunity to governors. and yet, they didn't take it up. instead, they passed an impeachment clause that basically says you can't remove

the president from office, accepted by a trial in the senate, but you can impeach him after. so, or you can impose criminal liability. we would be creating a situation in which we would be saying -- this is what you are asking us to say, which is that a president is entitled, not to make a mistake, but more than that, a president is entitled for total personal gain to use the trappings of his office -- that is what you are trying to get us to hold. without facing criminal liability. >> your honor, i would say three things in response to that. first, the doctrine that immunity does not turn on allegedly improper motivational

purpose is something that this court has reaffirmed in at least nine or 10 -- >> that is absolute immunity, but qualified immunity does say that whatever activity has to be within what a reasonable person would do. i am having a hard time thinking thatd creating false documents, that submitting false documents, without ordering the assassination of a rival, that accepting a bribe, and countless other laws that could be broken for personal gain, that anyone would say that it would be reasonable for a president or any public official to do that. >> your honor, as this court said very persuasively at fitzgerald, that the allegation that this particular act would be done for an unlawful purpose or was unlawful could be made in every case, and therefore, if that were the doctrine, that the allegation of improper process -- purpose is what deprives the objective acts of their immunity, then the immunity would have no purchase

and that is what is reflected -- >>sk so, isn't the work, though of improper motive, at least in absolute immunity context, to tell us what our official acts and what are not? i mean, i had understood that -- first of all, your ask is absolute immunity, isn't it? your position is you want the same kind of doctrine that we have applied in other contexts when we say an official has absolute immunity. my understanding is that when we say that, we need further official acts, is that right? >> yes. >> okay, so any official acts, but then in that world, the real decision-making from the courts standpoint is whether or not something is an official act or not, correct? >> that is an important determination, by all means. that is the determination in the absolute immunity world, because if you determine it is an official act, the principle is you got immunity for it, correct? >> that is correct.

>> so, my question is, i think that chief justice may have asked this at the beginning, maybe justice thomas, how do you determine what is an official act? i mean we are talking about the kind of scenarios justice soto mayor brought up, when the president is using the trappings of his office to achieve a personal gain, then he is actually not acting officially, even if the doctrine was absolute immunity. so, what do you say about that? >> two things in response to that. first, in the last point, that allegation, if this was really motivated by an improper private purpose, could be made in every single case. >> no, i understand that, but it would have to be made, i'm just trying to assess. even if we had the doctrine of absolute immunity, that same allegation and the facts related to it would come in because the person would be arguing that he was not acting in his official capacity, he wasn't doing something official, he was doing it personal, correct? >> i agree. p

i am not sure i agree, but the point i would make in response to that is in fitzgerald against nixon, this court emphasized that would result in an intrusive discussion or determination of the presidents motives for every official act, and this is not just in the case of the presidency -- >> can i just ask you another quick question before my colleagues take it over here? at the beginning of your analysis when you were given your opening statements, you are talking about, you know, you suggested that the lack of immunity and the possibility of prosecution in the presidential context is like an innovation. and i understood it to be the status quo. i mean, i understood that every president, from the beginning of time essentially, has understood that there was a threat of prosecution if for no other reason that the constitution suggests that they can be prosecuted after impeachment. that, you know, the office of legal council has said forever

that presidents are immutable to a threat of prosecution, and they have continued to function and do their jobs and do other things that presidents do. so, it seems to be that you're asking now for a change and what the law is, related to immunity. >> i would quote from what ch benjamin franklin said at the constitutional convention, which i think reflects the founders original understanding and intent here, which is that the constitutional convention, benjamin franklin said, history provides one example only tsof chief magistrate who was subject to justice, criminal prosecution, and everybody cried out against that. >> no, i understand, but since benjamin franklin, everybody has thought, including the presidents who have held the office, that they were taking this office subject to potential criminal prosecution, no? >> i see the opposite, i see all the evidence going the other way. mississippi against johnson -- that's so, what was up with the pardon for president nixon? if everybody thought that

presidents couldn't be prosecuted, then what was that about? >> we, he was under investigation for his private and public conduct at the time. i think everyone has properly understood that the president, since president grant's carriage riding incident, everyone has understood that the president could be prosecuted -- >> council, on that score, there does seem to be some common ground between you and your colleague on the other side, that no man is above the law, and that the president can be prosecuted after he leaves office for his private conduct, is that right? >> we agree with that. >> then the question becomes, as we have been exploring here today a little bit, about how to segregate private from official conduct that may or may not enjoy some immunity, and i'm sure we have spent a lot of time exploring that. but the d.c. circuit and blazing , chief judge there, joined by the panel, expressed some views about how to segregate private conduct for

which no man is above the law, from official acts. do you have any thoughts about the test that they came up with there? >> [ inaudible ] especially if it is understood through the lens of his separate opinion, a very persuasive test, it iz would be a great source for this court to rely on in drawing this line, and it emphasizes the breadth of that test, it talks about how actions that are plausibly connected to the president's official duties are official acts, and it also emphasizes that if it is a close case or appears there are considerations on the other side, that should also be treated as immune. those are the aspects of that that we would emphasize as potentially guiding -- >> in that case, the possibility of further proceedings and trial. >> exactly right, and that would be a very natural course for this court to take in this place. the court can and should reverse the categorical [ inaudible ] that there is no such thing as official acts -- t >> you agree further

proceedings would be required? >> that is correct. and i would point to anderson against creighton, where [ inaudible ] there is looking at the indictment itself, or in that case, it was a complaint, look at the charging document itself and see whether on the face of it, this is alleging official acts, and if not or can't be determined, then there would be a factual proceeding. [ inaudible ] would have to occur before any other proceedings. >> you began by explaining why you believe that immunity from criminal prosecution is essential for the proper functioning of the presidency. but my question is whether the very robust form of immunity that you are advocating is really necessary in order to achieve that result. so, just to take one possible alternative, suppose the role were that a former president cannot be prosecuted for

official acts unless no plausible justification could be imagined for what the president did, taking into account history and legal precedents, and the information that was provided to the president at the time when the act was taken. would that be sufficient, or if it is insufficient, why would it be insufficient? >> that might be a much better rule. we think it would be insufficient, because again, that long line of cases talking about using the presidents motives and intrusive sort of consideration of the presidents motives, as transforming acts to unofficial and official would come into play, and of course, once you can make that allegation, all of a sudden, ob you have opened the door, you no longer have a per se cleared role, you have a determination in every single case. >> but what if it did not

involve any subjective element, it was purely objective, you would look objectively at the various relevant factors. >> that sounds to me a lot like a blazing game, and especially through the lens of judge taxes separate opinion, and that might not be different than what we are proposing to the court today. >> blazing game had to do with the difference between official conduct and private conduct, right? >> that's right, i understood the court to be asking that. >> no, this would apply, just a possibility, i don't know if it is a good idea or a bad idea [ inaudible ] for any other source, but this would be applied in a purely objective -- on purely objective grounds, when the president invokes an official power in taking the action that is at issue. >> yes, the reason i think of blazing game is because it talks about an objective context to the decide what is official and what is purely private conduct.

with a strong degree of deference -- >> i am sorry, if i understood justice alito, he is suggesting not that. he is suggesting whether even if it is an official act, whether you still grant immunity if not act is not plausibly viewed as within the realm of law. he can correct me if i am wrong. >> no, that was the question. >> that, i think would be a superior role than the categorical denial that emerged in the court. >> i'm not quite sure why he used the word possible, because it seems to negate -- it might as well give absolute if you are thing possible, because anybody could argue plausibility. we don't even require plausible,

we require reasonable and qualified immunity. >> well, i mean, one might argue that it isn't possibly illegal to order seal team six, and i don't want to slander seal team six, no seriously, they are honorable.si there are honorable officers, and they are bound by the uniform code of military justice not to obey unlawful orders, but i think one could say that it is not plausible that that action would be illegal.ge and i am sure you have thought -- i have thought of lots of hypotheticals, i'm sure you have thought of a lot of hypotheticals where a president could say i'm using an official power, and yet the president uses it in an absolutely outrageous matter. >> that may well be an interesting approach to take. >> so, apply it to the allegations here, what is possible about the president assisting in creating a -- a fraudulent slate of electoral

candidates. assuming you accept the facts of the complaint on their face, is that plausible that that would be within his right to do? x absolutely, your honor, we have the historical precedent we set in the lower courts of president grant sending federal troops to louisiana and mississippi in 1876 to make sure the republican electors got certified in those two cases. the notion that it is completely on plausible can't be supported based on the face of this indictment. that's knowing that the slate is fake. knowing that the slate is fake, that they weren't actually elected, that they weren't certified by the state, he knows all those things. >> the indictment itself don't alleges -- i dispute that characterization. the indictment itself depicts the word fraudulent, but that

is a complete mischaracterization. on the face of the indictment, there was no [ inaudible ] and it's just been done as an alternative basis. but i want to address a more higher-level fundamental point, which is that as justice alito's question indicated, there is a serious of structural texts other than criminal prosecution that are designed to deter these kind of outlandish scenarios or extraordinarily obvious illegal things, and that has been viewed in this courts opinions i going all the way back to at least -- >> where do you think the d.c. circuit went wrong in how it determined what was official versus what is personal? >> well, i read the opinion below in this particular case as a categorical view, it does not matter is the logic of their opinion, because there is no immunity for official acts, and therefore, you know, that is the end of the story. i don't really think they went wrong in blazing game in the civil context when engaged in saying the determination with respect to what is official and

what isn't official, they already agree with what most of that opinion said. >> and for some official acts that are not within the article 2 explosive power, so official acts, but not within the article 2 explosive power, even for those, i assume you would think that a clear statement has to be required, a clear statement in the statute covering the president, if the presidents official acts are going to be criminalized. >> absolutely. obviously, the issue is that the highest possible level when it comes to the powers, like as in this indictment -- >> i am assuming the exclusive powers are walled off and can't be prosecuted before there is a lot of official powers that are not exclusive to the president under his article 2 authority, but for those, i understood you to be saying at a minimum, there would need to be a clear statement in the statute referencing the president, so that the president is on notice and can conduct himself or herself accordingly.

>> that is absolutely correct and that would be consistent over the franklin and public citizen and cases of law. let's go ahead. >> so, you can say that private acts don't get immunity? >> we do. >> so, in the special counsel's brief on pages 46 and 47, he urges us, even if we were to decide or assume that there were some sort of immunity for official acts, that there were sufficient private acts in the indictment for the child to go -- for the case to go back on the trial that began immediately, and i want to know if you agree or disagree? [ inaudible ] false claims of election fraud to spearheaded this challenges to the election result, private? >> sounds private. >> conspired with another private attorney who caused the filing in part of the verification assigned by a petitioner that contained false allegations to support a challenge.

>> that also sounds private. >> three private actors to attorneys including those mentioned above and a political consultant helped implement a plan to create fraudulent slates of electors to obstruct the proceeding and petitioner and co-conspirator directed that effort. o >> really quickly, i believe that is private. >> so, those actually would not dispute, those are private and you wouldn't raise a claim that they are official?tt >> as characterized. your honor, if any, what we would say is official is the department of justice to deliberate about who is going to be the attorney general of the united states. >> thank you. >> thank you, council, and what is the consequence in terms of going forward with your acknowledgment that those are private acts as opposed to official acts? >> if you look at the indictment here, there are a bunch of acts, they were clearly official. there may be allegations that most relate to what the government has described to here as private, and the court should demand or address s

itself, but demand for a brewster like determination, which is what is official and what is private? the official stop has to be expunged completely from the indictment before the case can go forward, and there has to be a determination of what is official and what is private. maxwell, if you expunge the official part of the indictment, how do you -- i mean, that is like a one legged stool, right? giving someone money isn't bribery unless you get something in exchange. if what you get in exchange is to become the ambassador of a particular country, that is official. the appointment is within the president's prerogatives. the unofficial part is i'm going to get $1 million for it. so, if you're saying you have to expunge the official part, how does that go forward? >> this particular indictment, when you say over conduct is official, we don't believe it would be able to go forward. or could be a case where it could, but if you look at even the governments briefing of this case, it divides up the indictment into things that other than the electors

allegations, don't really -- they haven't disputed that they are official acts, but what they are doing is saying, we are tying it all together as characterizing it as done and these are allegations that the court just referred to by an improper and, and that just runs loggerheads, dead set against this courts case list, t and you don't look at immunity determinations. the motive improper motivation or purpose. >> thank you. >> in assessing the official acts of the president, do you differentiate being president, acting as president, and the president acting as candidate? >> yes, we do, and we don't dispute essentially the blazing game discussion of that. of course that has to be done by objective determinations, not by looking at what was the purpose, that is the most important point. >>se did you in this litigation

challenge the appointment of special counsel? >> not directly. we have done so in the southern district of florida case, and we totally agree with the analysis provided by attorney general, and it points to a very important issue here, because one of their arguments is of course that, you know, we should have this presumption of regularity. that runs into the reality that we have here an extraordinary prosecutorial power being exercised by someone who was never nominated by the president or confirmed by the senate at any time. so, we agree with that position. we had it raised it yet in this case when this case went up on appeal. >> justice alito? >> when you say that the official acts should be expunged from the indictment, that in itself would not achieve very much unless evidence of those official acts were precluded at trial, so is that what you're saying, that prosecution should not be permitted at trial to prove the official acts as part of the

conspiracy is that are alleged? that's absolutely, and we think that is just the clear implications of brewster and johnson. >> thank you. >> i am a little bit confused by that. if you have a scheme to defraud or scheme to accept bribery, there is evidence from which you can infer that scheme, and one of them is that the appointment actually happened, it is an official act. we wouldn't expunge that as evidence, you would instruct the jury that there is no liability for the actual appointment, that the liability is for accepting the bribe. similarly here, i don't think the indictment is charging that the obstruction occurred solely because of conversations with the justice department. they are saying you look at all of the private acts and you look

in the context of some of the public acts, and you can infer the intent, the private intent from them. so, i am not sure that i understand why your problems couldn't be taken care of at trial with an instruction, if we believe, if the court were to find -- i am not even sure how they could, but if it were to find that some public acts cannot be the basis of criminal liability. >> i think the best thing i can say to that is, and i think this ties into the chief justice's question about a one legged stool, brewster and johnson in subsequent cases, essentially say that. that this is a one legged stool problem. it would be difficult for some of these prosecutions to proceed, and that is the locations of official immunity, which is dictated in the constitution here by the executive vesting clause. >> justice kagan?

>> if i can continue on just as barrett's vein a little bit and ask about some of the allegations of the indictment and whether they are official acts or not in your view. the defendant signed the verification of running foss election allocations on his behalf and a lawsuit filed against his name. >> i know we have disputed that that is official. te i'm sorry, that that is unofficial. >> sam furr the defendant called the chairwoman of the republican national committee, asked her to gather electors in targeted states, falsely represented to hurt that such electors votes would be used only of ongoing litigation in one of the states change the results in the defendant's favor? let's we have taken the position that that is official. >> why would that be official? >> because [ inaudible ] based on for example the historical example of president grant, is something that was done pursuant to [ inaudible ] the exercise of the court recommendation clause power.

so -- >> couldn't he have taken this action just in the status of the candidate? >> the fact that he could have done so doesn't demonstrate that he did so in this case, ca based on allegations, we think it is clear that he did not, that this was done in an official capacity. >> [ inaudible ] to hold a hearing based on the claims of election fraud. >> absolutely an official act for the president to communicate with state officials on the matter of federal interest and concern, attempting to defend the integrity of the federal election, to communicate with state officials and urge them to view what he views as their job under state law and federal law, that is an official act. >> well, attempting to defend the integrity of the election, i mean, that is the defense. the allegation is that he was attempting to overthrow an election. >> essentially, exactly right. and neither allegations of what the purpose is to make a determination as to whether it

is immune, that is extremely strong precedent from this court. >> does it strike you as odd that your understanding of immunity goes way beyond what llc has ever claimed for a former president? >> i view the llc opinions here strongly supporting us, because any time a congressional statute anywhere near touching the president's prerogatives, [ inaudible ] >> well, that is a different question. what llc has always said is that sitting presidents get immunity, but former presidents, no. now, there might be a different argument made about whether a statute feor whether a statute applied to particular conduct is properly available against the president, but that is a ge very different argument than the immunity claim that you are making here, which llc has definitively not supported.

>> i don't know if i would put it that way, i don't recall an opinion directly addressing it, but more fundamental to us, your honor, is cases like marbury and statements made by benjamin franklin at the constitutional convention, statements of george washington talking about the massive risk of factional strife and how that could destroy the republican -- erect a new government, that is what we rely on principally here. i cite the llc opinions, because of course, what you see there is a very long trend that if there is any statute that might [ inaudible ] they interpret it to avoid that. >> if a president sells nuclear secrets to a foreign adversary, is that immune? >> that sounds like similar to the bribery example, likely not immune. if it is an official act, he would have to be impeached and convicted first. >> what does it mean if it is structured as an official act? >> i don't know whether that would be an official act, it would probably need more

details to apply the blazing analysis or even the fitzgerald analysis we have been talking about. >> how about if the president orders the military to stage a coup wants to mark >> think that as the chief justice pointed out earlier, where there is a whole series of sort of guidelines against that, so to speak, like the uc mj, prohibits the military from filing a complaint unlawful act, with justice alito's test, that would fall outside. in the fitzgerald test that we advance, that might well be an official act. as i will say in response to all these hypotheticals, has to be impeached and convicted before it can be criminally prosecuted. >> well, he's gone, let's say, this president who ordered the military to stage a coup, he is no longer a president, he wasn't impeached, he couldn't be impeached, but he ordered the military to stage a coup, and you're saying that is an official act, that is immune. >> i think it would depend on

the circumstances whether it was an official act. >> what does that mean, depend on the circumstances? he was the president, he is the commander-in-chief, he talks to his generals all the time, and his generals all the time, and feel like leaving office i want to stage a coup, is that immune? >> if it is an official act, there needs to be impeachment and conviction beforehand, because the framers view -- >> if it is an official act, is it an official act? is it? >> on the way you have described that hypothetical, it could well be. i just don't know, it is a fact specific context. >> that answered sounds to me as though under my test, it is an official act, but that sure sounds bad, doesn't it? >> it certainly sounds very bad, and that is why the n framers have a whole series of structural attacks that successfully for the last 234 years prevented that very kind

of extreme hypothetical, that is the wisdom of the framers, what they view as the risk that needed to be guarded against was not the notion that the president might escape criminal prosecution for something sorta very, very unlikely indians on likely scenarios, they viewed much more likely and much more destructive risk of factional strife. >> framers did not put an immunity clause into the constitution, they knew how to, there were immunity causes in some state constitutions, they knew how to give legislative immunity, they do provide immunity to the president. and you know, not so surprising, they were reacting against a monarch who claims to be above the law. is it the whole point that the president was not a monarch and the president was not supposed to be above the law? >> i would say two things in response to that. immunity -- they did put an immunity clause in a sense, originally understood to adopt a broad community principal that was set forth in the very broad language of marbury against madison, and also, they did discuss and consider what would be the tax on the

presidency, and they do not say he didn't have criminal prosecution. right there at the constitutional convention, presented -- benjamin franklin said [ inaudible ] the structural check for adopting his impeachment, and they are very clear on that on pages 64 and 69. >> thank you. >> justice gore search? >> the hypothetical about the ambassador sale and bribery, congress has a statute that specifically names the president and says he can be criminally prosecuted for bribery, presumably after he leaves office. outside the core areas that justice kavanaugh was talking about, when congress speaks clearly, cut into a statute like that, congress provided a statute like that, that would allow all manner of evidence to come in to prove the case?

>> i think our position is that would have to be an unofficial act, purely private conduct, for the prosecution to go forward. >> it right, but outside the core areas of executive power, if there is a clear statement from congress that something is unlawful and it applies to the president, i'm struggling to see why in that case perhaps the evidence could come in? >> the strongest possible case, what you described as the core executive powers, the unrestricted will powers within the law, but the holding of brewster and johnson that we have relied on does it turn on how essential it is of an legislative act. applies to the outer perimeter test if it is fitzgerald against nixon, that doesn't come in. >> what would happen if presidents were under fear that their successors would criminally prosecute them for their acts in office, whether it is -- whether they are

engaged in drone strikes, all the hypotheticals, i am not going to go through them, it seems like one of the things that might be created is for presidents to try to pardon themselves. do you have any thoughts about that? >> didn't think of that until your honor asked it, that is certainly one incentive that might be created. >> we have never answered whether a president can do that. happily, it has never been presented to us. >> and if the doctrine of immunity remains in place, that is likely to remain the case for those varying issues. as fitzgerald very powerfully emphasized, the real concern here is is there going to be bold and fearless action? is the president going to have to make a controversial decision when his political opponents are going to come after him the minute he leaves office? is that going to dampen the order of that president to do what our constitutional structure demands of him or her, which is bold and fearless action in the face of controversy? >> and perhaps if he feels he has to, he will pardon himself

every four years from now on. ub >> as the court pointed out, that would provide security, because the legality of that is it has never been addressed. >> one of the checks, in addition to impeachment, that you have discussed's support of liability. you don't contest that everybody following an unlawful order beneath the president of the united states can be immediately prosecuted, do you? >> i am sorry? >> if the president gives unlawful order, calling the troops, all the examples we have heard, every subordinate beneath him this is criminal prosecution, don't they? >> that is what governor morris said explicitly at the constitutional convention, that is co-agitators could be prosecuted. there is an important caveat, because of course, there would have to be a statute that would govern that. >> but we got lots of statutes. the criminal law books are replete, but i mean, do you agree, is that one check that is available?

>> absolutely, and again, the only caveat i was making is if that statute was doing what marbury says you can't do, which is going after the subordinates to restrict for executive function, the franklin statement will likely trigger you might not be able ss to go after that president. so, i don't think congress can say, we can't go after the president directly, but we are going to criminalize the way the president speaks to congress, and therefore, we are going to put in a criminal statute that says if you provide false information to congress and carrying out the president's recommendations, you can be prosecuted. but the fundamental point of drawing that distinction between the president himself and his co-agitators in the words of the constitutional convention, is an excellent distinction. >> justice kavanaugh? >> follow up on the llc opinions question, as you read them, i think i read them, they articulate a clear statement rule as to this court's cases for covering official acts, and

your point, i think, but i just want to underscore this, is that none of the statutes alleged here or cited here have a clear statement covering the president, therefore meaning that the president can't be charged for any official acts under these statutes. >> that is absolutely correct, their extended way beyond -- >> that is separate from the question of what is official and what is personal, but for that bucket, that is official, there is no clear statement. >> that's right, and as to purely private conduct, we don't think the clear statement rule would be invoked. but these statutes, the ones charged in the indictment are way far field from criminalized in clear terms, the president's official acts. >> and just to clarify this, the president is not above the law, the president is not a king, the founders thought that. i think your point in response to that is the president is subject to prosecution for all

personal acts just like every other american for personal acts. the question is, acts taken in an official capacity. >> that is correct, and even those if there is impeachment or conviction can be prosecuted in our review. we recognizable series of structural texts in addition to that, which have successfully deterred this for 240 years. >> on the source of immunity, it is not explicit in the constitution, ambut also, executive privilege is not explicit in the constitution, yet in the united states versus nixon, the united states court exclusively said that the power in the constitution encompassed executive privilege, and the same principle presumably it would apply to executive immunity being encompassed m within that executive power as historically understood. >> that is actually correct and there is a very telling passage with enterprise fund where the scribe talks about how there is a letter from james madison to thomas jefferson at the time of the founding where madison said,

[ inaudible ] they did not expressly take this away, so that 1789 congress understood that it was left in place. [ inaudible ] broad enough to encompass that, it would have to be expressly taken away, which is the office to to the presumption here. >> i think you have acknowledged in response to those questions that some of acts in the indictment are private, and your view is that some artificial. is it your position then that the analysis of which is which should be undertaken in the first instance by the d.c. circuit or the district court? >> most likely district court. >> thank you. >> justice barrett?? >> you have argued that the impeachment clause suggests or requires impeachment to be a gateway to criminal prosecution, right? >> yes, i think that is the plain meaning of the second phrase in the cause.

>> okay, so there are many other people who are subject to impeachment, including the nine sitting on this bench, and i don't think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment, so why is the president different when the impeachment caused doesn't say so? >> someone very important has made the opposite suggestion as to the president himself, which is reaffirmed in the llc opinions on this, where in 1973, asked the vice president reviewed the historical materials, and he said the o sequence is mandatory only as to the president. that is doj's view, which is exactly our position, the sequence is mandatory only as to the president. keep in mind that the criminal prosecution of a president prior to impeachment contradicts, in our view, the plain language of the constitution, but also hundreds of years of history, and what doj admits is the framers detect, so we say that that practice, whatever its

validity, should not be extended at this novel context. >> what if the criminal conduct isn't discovered until after the president is out of office, so there was no opportunity for impeachment? >> we say the framers assumed the risk of under enforcement by adopting these checks. prevents us from writing every wrong, [ inaudible ] >> okay, and the special counsel makes a point that i think is a pretty compelling one, you admit that if the president were successfully impeached, that he could be criminally prosecuted after impeachment, right? >> assuming the prosecution was for the same conduct in which he was convicted, not impeached, you must be convicted. that word conviction is right there in the cause. >> okay, granted. but you also say that these criminal statutes, unless they explicitly mention the president, don't apply to him. so, how can you say he would be subject to prosecution after impeachmentt while at the same time saying he is exempt from these criminal statutes? let's well, there are statutes

-- >> two or three. that's they haven't done a review. [ inaudible ] again, under franklin, that is a very telling indication that the word president is not in the statute. but more fundamentally than that, they can see there are statutes that exist. in addition to that, much impeachment could occur as a result of private conduct. so, the judgment cause do significant work authorizing the prosecution of the president, because the framers, if you look at what you are discussing in the constitutional convention, is principally concerns about private conduct. >> just to pick up justice kagan's example of a president who orders a coup, let's imagine he's impeached and convicted for ordering that coup, and that's just except for the sake of argument your position that was official av conduct, saying he couldn't be prosecuted for that, even after conviction in an impeachment proceeding if there was not a

statute that expressly referenced the president and made it criminal for the president? there would have to be a statute that made it clear statement that congress purported to regulate the president's conduct. >> thank you. ask justice jackson? >> so, i think i now understand better your position in your discussions with justice kavanaugh, became clear that you are saying that for the private acts of a president, there is no immunity, but for the official acts of the president, there is immunity. is that your position? >> i agree with that. >> all right, so, one thing that occurs to me is that this sort of difficult line drawing problem we are having with obvious hypotheticals, is this a private act or a public act, is being necessitated by that assumption. because of course, if official acts didn't get absolute immunity, then it would matter,

we would have to identify which are private and which are public, correct? >> that in fact is the approach of the d.c. circuit. there is no determination -- so, to the extent we are worried about, how do we figure out whether it is private or public, we have to understand that we are only doing that because of an underlying assumption that the public acts get immunity. so, let me explore that assumption. why is it, as a matter of theory, i am hoping you can sort of zoom way out here, that the president would not be -p required to follow the law when he is performing his official acts? everyone else, there are lots of folks who have very high- powered jobs, make a lot of consequential decisions, and they do so against the backdrop of potential criminal prosecution, if they should es break the law in that capacity. and we understand and we know as a matter of fact that the president of the united states has the best lawyers in the

world. when he is making a decision, he can consult with pretty much anybody as to whether or not this thing is criminal or not, so, why would we have a situation in which we would say that the president should be making official acts without any responsibility for following the law? x i respectfully disagree with that characterization, the president absolutely does have e responsibility, he absolutely is required to follow the law in all his official acts, but the remedy for that is the question. could it be subject to personal vulnerability, sent to prison for making a bad decision after he leaves office? >> but other people who have consequential jobs and who are required to follow the law make those determinations against the backdrop of that same kind of risk, so what is it about the president. i mean, i have heard you say it is because the president has to be able to act boldly -- make kind of consequential decisions.

i mean, sure, but again, there are lots of people who have to make life and death kinds of decisions, and yet, they still have to follow the law, and if they don't, they could be sent i to prison, et cetera. so -- >> i say two things in response to that, fitzgerald, that is the inferential reason -- >> let me just -- fitzgerald was a civil situation in which the president was actually in a different position than other people, because of the nature of his job, the high-profile nature, and the fact that he touches so many different things. when you are talking about private civil liability, you know, anybody on the street could sue him, we can see that the president was sort of different than the ordinary person who you say should he be immune from civil liability from anybody wants to sue him? when we are talking about criminal liability, i don't understand how the president stands in any different position with respects to the need to follow the law as he is doing his job than anyone else. >> he is required to follow the

law. >> but he is not if there is no threat of criminal prosecution, what prevents the president from just doing whatever he wants? >> all the structural text that are identified in fitzgerald and a series of court cases. for example, impeachment, oversight by congress, public oversight, there is a long series, fitzgerald directly addresses this in the civil context. >> i am not sure that that is much of a backstop, and what i am, i guess were worried about, you seem to be worried about the president being killed, i think we would have a really significant opposite problem if the president wasn't chilled. if someone with those kinds of powers, the most powerful person in the world, with the greatest amount of authority, to go into office knowing that there would bes no potential penalty for committing crimes, i'm trying to understand what the disincentive is from turning the oval office into,

you know, the seat of criminal activity in this country. >> i don't understand allegation of that. what benjamin franklin said is we view the prosecution of chief executive as everything everybody cried out against as unconstitutional. what george washington said is we are worried about factional strife. >> no, let me put this worry on the table. if the potential for criminal liability is taken off the table, wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with a bandit while they are in office? it is right now the fact that nd we are having this debate because [ inaudible ] has said that presidents might be prosecuted. presidents from the beginning of time have understood that that is a possibility, that might be what has kept this office from turning into the kind of crime centered that i am envisioning, but once we say no criminal liability, mr. president, you can do whatever you want, i am worried that we

would have a worse problem than the problem of the president feeling constrained to follow the law while he is in office. >> i respectfully disagree with that because the regime you described is the regime we have operated under for 234 years, there has not been an expectation based on 234 years of unbroken -- >> let me ask you another question about this clear statement line of questioning. first of all, i didn't see you argue that below. i don't know -- i understand that you have that in your briefs here, but did you argue before the d.c. circuit something about a clear statement with respect to statutes? >> yes, in our separately filed motion [ inaudible ] argued not just this clear statement -- >> right, but that is not the question presented in this case. the question presented in this case comes out of your motion for immunity, so to bring in now an argument that you didn't raise below, it seems to me

that you forfeited, no? >> especially because the court expanded the question presented. >> it but not to statutory interpretation. i mean, that argument goes to statutory avoidance, you know, constitutional avoidance, statutory interpretation, you asked for immunity, which is a totally different thing.s >> i think they are very closely related, logically. the question is does immunity exist and to what extent does it? the argument is that it raises a great question [ inaudible ] >> but that is totally circular. you use that argument to avoid constitutional questions. you are asking us a constitutional question here, so it doesn't even make sense to talk about clear statement rule the way thhas come up in the context of an immunity question, but let me just ask you this about it, one more question. yeah, so, what is the argument

that the president of the united states, who you say is bound by the law, is not on notice that he has to do his job consistent with the law. i mean, to the extent that the clear statement rule comes in at all, it is about the person not being on notice, so i guess i don't understand why congress in every criminal statute would have to say and the president is included. i thought that was the sort of i thought that was the sort of if they are enacting a criminal statute, it applies to the president just like everyone else, what is the clear statement that would have to be made in this context? w >> under franklin and under public citizen, congress has to speak clearly before it interferes with the president's powers, and we have here an indictment that seeks to criminalize objective conduct that falls within the heartland of core executive authority. >> thank you. >> thank you, council. mr. trayvon? >> mr. chief justice, this

court has never recognized absolute criminal immunity for any public official. petitioner, however, claims that a former president has mu permanent criminal immunity for his official acts, unless he was first impeached and convicted. his novel theory it would immunize former presidents for criminal liability for bribery, treason, sedition, murder, and treason, sedition, murder, and to overturn the results of an election and perpetuate himself in power. such presidential immunity has no foundation in the constitution. the framers knew too well the dangers of a king who could do no wrong. they therefore devised a system to check abuses of power, especially the use of official power for private gain. here, the executive branch is enforcing congressional statutes and seeking accountability for petitioners' alleged misuse of

official power to subvert democracy. that is a compelling public interest. in response, petitioner raises concerns about potential abuses. the established legal safeguards provide layers of protections with the article 3 courts providing the ultimate check. the existing system is a carefully balanced framework. vm it protects the president, but not at the high constitutional cost of blanket criminal immunity. that has been the understanding of every president, from the framing, through watergate, and up to today. this court should preserve that. i welcome the courts questions. >> mr. dreeben, does the president have immunity or are you saying that there is no immunity, presidential immunity, even for official acts?

>> yes, justice thomas, but i think that it is important to put into perspective the position that we are offering the court today. the president as the head of the article 2 branch can assert as applied article 2 objections to criminal laws that interfere with an exclusive power possessed by the president or that prevent the president from accomplishing is constitutionally assigned functions. that is the constitutional doctrine that currently governs the separation of powers. what petitioner is asking for is a broad blanket immunity that would protect the president , a former president, from any criminal exposure absent impeachment and conviction, which has never happened in our history, and we submit, that is not necessary in order to assure that the president can perform all of the important tasks of the constitution.

>> over in the not so distant past, the president or certain presidents have engaged in various activity, coups or operations, like operation mongoose when i was a teenager. and yet, there were no prosecutions. why?hi if what you are saying is right, it would seem that that would have been right for criminal prosecution. >> so, justice thomas, i think this is a central question. the reason why there have not been prior criminal prosecutions is that there were not crimes. and i want to explain why there are layers of safeguards that assure that former presidents do not have to lightly assume criminal liability for any of their official acts. statute to the president's act.

statutory construction principle applicable here, it arises when there is a serious constitutional question about applying a criminal statute to the president's acts. it is not, and i am sure we will discuss this, that no statute can apply to the president in his official capacity, absent a designation that the president did it. but there is a principle that there is a serious constitutional question courts will strive to construe the statute so does not apply to the president. in addition to that, the president, i think, has been mentioned earlier, has access to advice from the attorney general. and it would be a due process problem to prosecute a president to receive, who received advice from the attorney general that his actions were lawful, absent the kind of collusion or conspiracy

that itself represented a criminal violation, which i don't really see as being a realistic option. if i can say one more thing, because you raise the question about potential overseas taking of life, the office of legal counsel has addressed this quite specifically. there is a background principle of criminal law called the public authority exception to liability, and it is written into federal law unless congress takes specific action to oust it which it never has done as far as i am aware. and in a case in which the president sought to engage in overseas activity that would result in the taking of life, or else he did not say the federal murder statute does not apply, that would be the thrust of my friends argument unclear statement, instead, olc went through an extensive analysis on why the public authority defense would prevent it from being considered a violation of law to after a terrorist for example. >> >> the court of appeals the low

, said a former president can be prosecuted for his official acts because the fact of the prosecution means the former president has allegedly acted in defiance of the laws." do you agree with that statement? >> i think it sounds topologically true, but i want to underscore that the obligation of a president is to take care that the laws are faithfully executed. >> i think it sounds, logically true as well because that is the true statement that is holding which is why it concerns me. it as i read it, it's is simply a former president can be prosecuted because he's being prosecuted. >> will i would not suggest that that is either the proper approach in this case or certainly not the government's approach. a prosecution does of course invoke federal criminal law. the allegations have to be

presented to a grand jury. which votes upon the indictment. >> shortly after that statement in the court, that is what they said, but there is no reason to worry because the prosecutor will act in good faith and there is no reason to worry because the grand jury will have returned to the indictment. you know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment and reliance on the good faith of the prosecutor may not be enough in some cases. i am not suggesting here. so, if it is tautological and those are the only protections that the court of appeals below gave, and it's no longer your position, you are not defending that position, why shouldn't we send it back to the court of appeals or issue an opinion making clear that that is not the law? >> i am defending the court of appeals judgment, and i think

there are layered safeguards that the court can take into account that will ameliorate concerns about unduly chilling presidential conduct. that concerns us. we are not endorsing a resume we think would expose former presidents to criminal prosecution and bad faith, for political animus, without adequate evidence. a politically driven prosecution would violate the constitution under way versus united states. is not something within the arsenal of prosecutors to do. prosecutors take an oath, the attorney general takes an oath. i don't want to overstate your honors concern with potentially relying solely on good faith. but that is an ingredient. and then the courts stand ready to adjudicate motions based on selective prosecution, political animus. this court relied on those very protections in a case just two years --

>> what concerns me is, as you know the court of appeals did not get into a focused consideration of what acts we are talking about or what documents we are talking about because of its adoption of what you termed, and i agree, quite correctly, is a tautological statement. because the fact of prosecution was enough to take away any official immunity. the fact of prosecution. they had no need to look at what courts normally look at when you're talking about privilege or amenity question. >> i think i would take issue, mr. chief justice, with taking away immunity. there is no immunity that is in the constitution unless this court creates it today. there certainly is no textual immunity. we do not submit that that is the end of the story. united states versus nixon was a contextually based case neither was nixon versus fitzgerald. we endorse both of those

holdings. but what is important is that no public official has ever had the kind of absolute criminal immunity that my friend speaks of, even with respect to the speech or debate clause. is very narrow, it is focused on legislative acts ima it is not focused on everything a congressman does and it response to a very specific historical circumstance that basically involved the two other branches of potentially y harassing legislators and preventing them from doing their jobs. that is wide ended up in the constitution. nothing like that ended up in the constitution for the president. and that is because one of the chief concerns of the framers was the risk of presidential misconduct. they labored over this. they adopted an impeachment structure that separated i removal from office as a political remedy from criminal

prosecution. this departed from the british model. the british model was, you get impeached and criminally prosecuted and convicted in the same proceeding. the framers did not want that. wanted a litical remedy in case a president was engaging in conduct that endangered the nation. he could abe removed. he can't be prosecuted while he's a sitting president. that has been the long-standing justice department decision. >> mr. dreeben, you dispute the proposition that a former president has some form of immunity. but, as i understand your argument, you do recognize that a former president has a form of special protection, namely that statutes that are applicable to everybody must be interpreted differently. under some circumstances, when they are applied to a former president. isn't that true? >> it is true, because courts construe statues to avoid serious constitutional questions. and that has been the long- standing practice of the office of legal counsel in the

department >> so, this is more, i think than just a quarrel about terminology, whether with the former president gets his sums form of immunity or some form of special protection. because it involves this difference, which i'm sure you are aware of. if it is just a form of special protection, in other words statutes will be interpreted differently as applied to the president, then that is something that has to be litigated at trial, that the former president can make a motion to dismiss and may cite a opinion in the district court may say, that's fine, i am not bound by olc and i interpreted differently. so let's go to trial. and then there has to be a trial and that may involve great expense and it may take up a lot of time and during the trial the former president may be unable to engage in other activities that the former

president wanted to engage in. and then the outcome is dependent on the jury, the instructions to the jury, and how the jury returns a verdict. and then has to be taken up on appeal. so the protection is greatly diluted if you take -- if it takes the form you have proposed. why is that better? >> it is better because it is more balanced. the blanket ocimmunity that petitioner is arguing for just means that criminal prosecution is off the table unless he says that impeachment and conviction have occurred. those are political remedies that are extremely difficult to achieve in a case where the conduct, misconduct occurs close to the end of a president term. congress is unlikely to crank g up the machinery to do it and the impeachment trial has to occur after the president has left office, there is an open

question about whether that can happen at all. >>you are arguing against most far-reaching aspects of john sauer's argument. >> that is correct, -- >> what about to unpack it a little more, do you agree there are some aspects of article 2 presidential power that are exclusive in congress cannot regulate and therefore cannot criminalize? >> absolutely. >> for other official acts the president may take that are not within that exclusive power, assume for the sake of argument this question that there is not blanket immunity for those official acts, but that to preserve the separation of powers, to provide fair notice to make sure congress has thought about this, that congress has to speak clearly to criminalize official acts of the president by a specific reference. that seems to be with the olc

opinion suggests. i know you have a little bit of a disagreement with that and with this court case is also suggested. >> justice kavanaugh, i like to take those intern because i don't think the office of legal counsel opinions stand for this broad proposition that unless the president is specifically named, he is not in the statute. and i don't think that is rr necessary in order to afford adequate protection for the president's valid article to function. >> sorry to interrupt, i want to get this out, you can incorporate it in your answer, you said unless there is a serious constitutional question. is a serious constitutional question whether a statute can be applied to the president's official acts, so wouldn't you always interpret the statute not to apply to the president even under your formulation, unless congress had spoken with clarity? >> i don't think across the board serious constitutional question exists on applying any constitutional statute to the

president. >> the problem is the vagueness, 371 conspiracy to fraud the u.s. can be used against a lot of presidential activities. historically, in a creative prosecutor who wants to go after a president. >> let me try to backtrack a little bit. >> that's what we are talking about historically is the risk, and going forward, the risk. >> i think the question about the risk is very serious. obviously it is a question that this court has to evaluate. for the executive branch, our view is that there is a balanced protection the better serves the interests of the constitution, that incorporates both accountability and protection for the president. and i want to go through the protections that do exist. but perhaps it is worth returning at the outset to the statutory construction question that you raised.

the office of legal counsel has said the offense of bribery of course applies to the president. it does not name the president, section 201 does not specifically name the president. >> i would assume that is personal. >> bribery statute, 607 says the president. i have it in front of me. there is that. >> let me just backup a second, what was a quick exchange with justice kavanaugh. i want to make sure you understand, did you agree there are some core functions of the executive that congress cannot criminalize? >> yes. >> you can call it humidity or the can't do it, what is the difference? >> we call it as applied article 2 challenge. >> okay. can we call it immunity for shorthand sake? i think we are

kind of narrowing the ground of dispute. it seems to me there is some area you concede that official acts congress cannot criminalize. and now we are talking about the scope. >> i don't think it is a just, i think it is a significant gap between an official act and the small core of exclusive official acts. >> i got that, but i want to explore that. for example, let's say a president leads a mostly peaceful protest sitting in front of congress because he objects to a piece of legislation that is going through. and it in fact delays the proceedings in congress. now, under 1512 c2 that might be impeding an official proceeding. is that core and therefore immunized or whatever euphemism you want to use for that? therefore prosecutable?

without a clear statement that applies to the president. >> it is not core. the core kinds of activities that the court has acknowledged are the things that i would run through the youngstown analysis. it is a pretty small set, but things like the pardon power, the power to recognize foreign nations, the power to veto legislation, the power to make appointments. these are things the constitution specifically allocates to the president. >> a president could then be prosecuted for the conduct i described? after he leaves office? >> probably not but i want to explain my framework of why i don't think that would be prosecution that would be valid. first, i think you need to run through all of the sort of normal categories of analysis. a serious constitutional question that is opposed by applying that to the resident, then you may will default to it does not apply -- >> that was my question.

you said it fell outside of that core we will call it immunity, for simplicity sake. >> there is a separate category -- >> why couldn't he be s prosecuted for leading a civil rights protest in front of the capital that delays a vote on a piece of important legislation? >> i think we need to do is run through all of the very president specific protective layers of analysis. one of them is whether the - statute would be construed not to apply to his conduct even if it is not part of that small core of things the congress can't regulate at all. if it prevents the president from fulfilling -- >> he could've given speeches against it. but he did something more and it corruptly impeded and sought to influence an official proceeding. >> we are starting with the layers i think of protection

and we are now down through whether the statute would be construed to apply to him. s. then there would be a question of whether he has the state of mind necessarily -- >> no one knows what corrupt intent means. we have been around that tree. maybe it means he knows he was doing wrong, as the government told us. he knows he's doing wrong, he knows he shouldn't be out there blocking a congressman. >> let me get to the next layer which is the president does have access to the attorney general to provide legal advice and regularly gets legal advice from the attorney general in the lawful scope of the presidents activity. one, the attorney general advises him as an incident of his article 2 authority and in carrying out of the functions of the presidency, he can lawfully participate in that

protest. it is kind of a first amendment analog to the president's official powers, which the court is exploring in other cases. alternatively the attorney general could advise him, mr. president, there is nothing in the language of this statute the carbs you out. i don't see a serious constitutional question and i would advise you not to violate any criminal law. >> if he gets a negative opinion from the attorney general, he still couldn't be prosecuted? >> i would assume most presidents are not going to -- >> but if he gets one and does it anyway he could be prosecuted? >> i think we are really asking is if the president is subject e to the criminal law. and our answer is yes he is subject to criminal law. >> can we go back, i like you understand the only thing covered by that is the president is barred from soliciting or receiving funds in any room or building in the united states. >> that is correct. >> it's a very limited mention.

so, as i understand this, there are two very limited provisions mentioning the president that is included. there are whole number of provisions that exclude the president, many, many more that exclude the president. correct? >> it's kind of a small number on both sides. >> just a spirit made the point that if we say a president can't be included in criminal law unless explicitly named, then that would bar the senate from impeaching him for high crimes or misdemeanors because that means that he is not subject to the law at all. correct? >> i think, -- >> that is a technology you can't escape. >> i think that what just the

spirit was saying, and we wouldo agree with that, under my friends position after impeachment he could be prosecuted. but under his statutory construction approach, there would be nothing to prosecute him for. >> exactly, that is the point. if he is not covered by the criminal law he can't be impeached for violating it. all right. now, could we go further on this clear statement rule? the situations, you mentioned it earlier, you have to look to see if the president is covered, is contextual, correct? o >> correct. >> what are the factors the nd generally we look at? i am thinking specifically about whether the apa covers the president. >> correct. >> what we did there was analyze what powers were being given in the lawsuit and et cetera, we look at words, structure, we looked at separation of power issues relating to our case law that said you can't direct a president to do anything and this would've been a subterfuge for that. correct? >> all correct. >> i don't know why two of my colleagues, how they would fashion a clear statement rule that would say when they lost

-- law says any person can't accept a bribe, that that permits the president to do it. >> so, i agree, justice sotomayor, that the way this court has interpreted statutes that do carveout was very context specific. the franklin case basically involved holding that we are highly unlikely to say that the president is an agency, something the government said would be a peculiar understanding of agency, when the effect of it would be we would review the president's decisions under statutes for abuse of discretion. o which is a very extra neri thing to do. b even going back to marbury, perhaps a point i agree with my friend, my very says discretionary acts of the president are not the kind of thing the court reviews. >> if i go back to your brief, going back to what some of my colleagues have asked you, there appears to be some narrowing principles to the

concept that the president is subject to all criminal laws in all situations. do you agree that this affects core powers, then he would not be subject to any laws that attempted to limit those or powers? >> that is correct. >> you are defining core powers as those specified by article 2. >> that is essentially correct, yes. >> all right. and the only words in the constitution is that -- that have to do with the president and law, is that he shall take care that the law will be faithfully executed. correct? >> that's right. >> hard to imagine our president breaks the law is faithfully executing law. >> yes to execute all of the laws. >> presidents have to make a lot of tough decisions about enforcing the law and they have to make decisions about questions that are unsettled in

the have to make decisions based on the information that is available. did i understand you to say, well, if he makes a mistake, he makes a mistake, he is subject to the criminal laws just like anyone else? he is in a peculiarly precarious position. >> he is in a special position for number of reasons. one is that he has access to legal advice about everything he does. is under a constitutional obligation, he supposed be faithful to the laws of the u.s. and the constitution of the u.s. and making a mistake is not what lands you in a criminal prosecution. there has been some talk about the statutes issued in this case. i think they are tfairly described as statutes engaging in conspiracies to defraud the united states with respect to one of the most important functions, namely the certification of the next president.

>> i want to dispute that particular application of that, 371 conspiracy to defraud the united states, the particular facts here. would you not agree that that is a peculiarly open-ended statutory prohibition? that fraud under that provision, unlike under most other fraud provisions, doesn't require any impairment of a property interest? >> it is designed to protect me the functions of the u.s. government and it's difficult to think of a more critical function than the certification of who won the election. >> as i said i'm not discussing the particular facts of the case, but it applies to any fraud that interferes seriously with any government operation. >> what the government needs to show is an intent to impede, interfere or defeat a lawful

government function by deception. it has to be done -- these are not the kindest of activities any of us would think a president needs to engaging in order to fulfill his article 2 duties and in particularly in a case like this one, i want to pick up on something the court said earlier about the distinction between a public official acting to achieve public ends and a public official acting to achieve private ends. as applied to this case, the president has no functions with respect to the certification of the winner of the presidential . election. it seems likely that the framers designed the constitution that way because at the time of the founding, presidents had no two term limit. they could run again and again. and were expected potentially to want to do that. so the potential for self interest would explain why the states conduct the elections, they send elect tors to certify

who won those elections and provide votes. and then congress in an extra neri joint session certifies the vote. the president doesn't have an official role in that proceeding. is difficult for me to understand how there could be a serious constitutional question about saying, you can't use fraud to defeat that function, you can't obstruct it through deception, you can't deprive millions of voters of the right to have their vote counted for the candidate who they chose. >> thank you, counsel. justice thomas? justice alito? >> could we briefly review the layers of protection you think exist? i'm going to start with what the d.c. circuit said. the first layer of protection is attorneys general and other justice department attorneys can be trusted to act in a professional and ethical matter. -- manor. >> yes.

>> how robust is that protection? the vast majority of attorneys general and justice department attorneys, and we both served in the justice department for a long time, or honorable people and they take their professional, ethical responsibilities seriously. but there have been exceptions. right? both among attorneys general and federal prosecutors. >> there have been rare exceptions, but when we are talking about layers of protection, i do think this is the starting point. and if the court has concerns about the robustness of it, i would suggest looking at the charges in this case. >> i'm going to talk about this in the abstract because it is before us does involve this particular case, which is immensely important. but whatever we decide is going to apply to all future presidents. so, as for attorneys general, there have been two who were convicted of criminal offenses while in office. there were others, mitchell palmer is one who comes to mind.

widely regarded as having abuse the power of his office. would you agree with that? >> i would, but they are two officials in a long line of attorneys general who did not and in departments of justice staffed by multiple people who f do adhere to their office. justice alito, the point i wanted to make about this case does go to the general proposition. the allegations about the the allegations about the justice to perpetuate election fraud show exactly how the department of justice functions in the way it is supposed to. petitioner is alleged to have tried to get the department of justice to send fraudulent letters to the states to get them to reverse electoral io results. >> i understand that, mr. dreeben, as i said, this case will have effects that go far beyond this particular prosecution.

so moving on to the second level, of protection that the d.c. circuits cited, federal grand juries will shield former presidents from unwarranted indictments. how much protection is that? >> it affords two levels of protection. one is the probable cause finding requires evidence. i think some of the fears about groundless prosecutions are supported by evidence and they are not going to get out of the starting gate. >> there is the old thought about indicting a ham sandwich. >> yes but -- >> you have had a lot of experience in the justice department. you come across a lot of cases where the u.s. attorney or another federal prosecutor really wanted to indict a case in the grand jury refuse to do so. >> there are such cases. yes. but, i think -- >> every once in a while there is an eclipse. >> for the most reason as prosecutors have no incentive to bring the case to a grand jury and in -- secure an indictment but they don't have

evidence to prove beyond a reasonable doubt. it is self-defeating. >> the third level is that they enjoy all the protections afforded. we have discussed that. re that may be true at the end of the day but a lot can happen between the time an indictment is returned and the time when a former president finally gets vindication, perhaps on appeal. isn't that correct? >> it is correct, but i think we should also consider the history of this country. is memories -- members of the court have observed it's baked into the constitution that if they are exposed to criminal prosecution, my friend says after impeachment and conviction, we don't read the clause that way but it is common ground that all former presidents have known that they could be indicted and convicted. and watergate cemented that understanding. the watergate smoking gun tape involved president nixon and

rachel hardeman talking about and then deciding to use the cia to give a bogus story to the fbi to shutdown a criminal investigation. >> mr. sauer and others have identified events in the past were presidents have engaged in conduct that might have been charged as a federal crime, and you say, that is not really true. this is page 42 of your brief. what about president franklin d roosevelt's decision to return japanese-americans during world war ii? couldn't that have been charged under conspiracy against civil rights? >> today, yes, given the court's decision in trump versus united states in which -- trump versus hawaii, excuse me, president roosevelt made

the decision with the advice of his attorney general. that is a layer >> is that really true? i thought the attorney general thought that and there was no threat of sabotage, as did j edgar hoover. >> i think there is a lot of historical controversy. but it underscores that that occurred during wartime and implicates a potential mentoring chief, concerns about the exigencies of national defense that might provide an as applied article to challenge at the time. i am not suggesting today. but the idea that a decision that was made and ultimately endorsed by this court, perhaps wrongly in the case, would support criminal prosecution under 241 which requires under united states versus linear in that the rights have been made

specific. so there is notice to the president. i don't think that would've been satisfied. >> we could go through other historical examples. i won't do that. let me touch briefly on a couple other things. one is the relevance of advice of counsel, and it wasn't clear which are answer is. if the president gets advice from the attorney general that something is lawful, is that an absolute defense? >> yes, i think that it is under the principle of entrapment. this is a due process doctrine that we referred to in our brief, in our reply brief. page 19, we cited authority of this court that if an authorized government representative tells you what you are about to do is lawful, it would be a root violation of due process to prosecute you for that. >> want that give presidents incentive to be sure to pick an attorney general who will reliably tell the president that it is lawful to do whatever the president wants to do, if there is any possible

conceivable argument in favor of it? >> i think the constitutional structure protects against that risk. the president nominates the attorney general and the senate provides advice and consent. these are the sort of structural checks that have id operated for 200 years to prevent the kind of abuses that my friend fears going forward as a result of this once in history prosecution. >> on the question of whether a president has the authority to pardon himself, which came up earlier in the argument, what is the answer to that question? >> i don't believe the department of justice has taken a position. the only authority i am aware of is a member of the office of legal counsel wrote on the memorandum. there is no self pardon authority. the department has not addressed it further and of course this court had not addressed it either. >> when you addressed that question before, you speaking your capacity solely as a re member of the special counsel's team or are you speaking on

behalf of the justice department, which has special institutional responsibilities? >> i am speaking on behalf of the justice department representing the united states. >> don't you think we need to know the answer to at least two -- the justice department's decision in order to decide this case? if the president has the authority to pardon himself before leaving office and the d.c. circuit is right that there is no immunity from prosecution, the predictable result be that presidents in the last couple of days of office will pardon themselves from anything they might've been conceivably charged with committing? >> i really doubt that, it's sort of presupposes a regime we have never had except for president nixon and as alleged in the indictment here.

presidents who are conscious of having engaged in wrongdoing and seeking to shield themselves. i think the political consequences of a president who asserted a right of self pardon has never been recognized that seems to contradict a bedrock runcible law that no person shall be the judge in their own case, those are adequate deterrence so that this kind of dystopian regime is not going to evolve. >> let me end with a question, what is required for the functioning of a stable democratic society? which is something we all want. i'm sure you would agree with me that a stable democratic society requires that a candidate who loses an election , even a close one, even a hotly contested one, leave office peacefully. if that candidate is the incumbent. >> of course. >> all right. now, if an incumbent who loses

a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into going to be able to go off into the president may be criminally prosecuted by a hitter medical opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy? and we can look around the world and find countries where we have seen this process. where the loser gets thrown in jail. >> i think it is exactly the opposite, there are lawful mechanisms to contest the results in an election. outside the record, but i think of public knowledge, a petitioner and his allies filed dozens of electoral challenges and in my understanding has lost all but one that was not

outcome determinative in any respect. there were judges that said in order to sustain substantial claims of fraud that would overturn an election result, that is certified by a state, you need evidence, you need proof. and none of those things were bl manifested. so there is an appropriate way to challenge things through the courts with evidence, if you lose, you accept the results. that has been the nation's experience. >> thank you. >> a stable democratic society needs the good faith of its public officials, correct? >> absolutely. >> that good faith assumes that they will follow the law. >> correct. >> now putting that aside, there is no failsafe system of government. meaning, we have a judicial system that has layers and layers and layers of protection

for accused defendants. in the hopes that the innocent will go free. we fail routinely. but we succeed more often than not. in the vast majority of cases, the innocent do go free. sometimes they don't and we have some postconviction remedies for that. but we still fail. we have executed innocent people. having said that, justice alito went through step-by-step all of the mechanisms that could potentially fail. in the end, if it fails completely it is because we have destroyed our democracy on our own, isn't it? >> it is, and i also think that there are additional checks in the system. of course the constitutional framers designed a separated power system in order to limit

abuses. i think one of the ways in which abuses are limited is accountability under the criminal law for criminal violations. but the ultimate check is the goodwill and faith in democracy . and crimes that are alleged in this case that are the antithesis of democracy -- >> and encouragement to believe words that have been somewhat put into suspicion here, that no man is above the law, either in his official or private ask. >> i think that is an assumption of the constitution. >> justice elena kagan? >> i want to go through your framework and make sure i understand it. first on the small category of things you say have absolute protection, that they are core executive functions. what are those small sa categories? >> pardon power.

>> veto. >> foreign recognition. appointments. congress cannot say you cannot appoint a federal judge who hasn't received a certain diploma or hasn't achieved a certain age. there are a few other powers. >> is commander-in-chief? >> commander-in-chief is on the list, but i want to add to my answer on that, congress has substantial authority in the national security realm. congress declares war, raises armies. has power over the purse. >> that may be viewed as not really in the core set of functions which no one has any power but the president over. >> yes, i think there may be some aspects like directing troops on field in which the president's power is completely -- >> in the next category where we have left the corset behind, but we are still in the world of official actions, that is where you say there are various

statutory construction rules that might come into play. >> correct. >> but you have characterize those is something different from just saying look, the statute doesn't say the president therefore does not apply to the president. >> that's right. >> i wanted to give you an opportunity to say how that would look, how that analysis would look and given case and in the course of responding to that, i am sort of thinking of something like the olc opinion, which says bribery, the president can be tried and convicted of bribery, even in part of the bribery statutes that do not say the president. why is that true? >> that is true because there is no serious constitutional question that the resident used to carry out -- office legal counsel pounded out bribery is enumerated in the impeachment clause. it falls outside of anything that could be viewed as e inherent in the need of article

2 the function. >> do you think the premise of the olc opinion was that bribery was simply not official? >> no. >> ors the premise that the bribery was official and still the president could be t prosecuted for it? >> i think bribery is the kind of hybrid that illustrates the abuse of public office for private gain that we think is paradigmatic of things that should be not held to be immune. in a bribery case, the public i official cannot extract the bribe without the official power to offer as the quit or pro-. i guess the pro, actually. so it really is a crime that can only be committed by public officials who misuse their power. it was one of the things that was most mistrusted. many of the acts that are charged in this indictment or that would violate criminal law involve the use -- misuse of

official power for private gain. >> if you were to say what the line is in this category, like when it is that the statute should be understood as precluding presidential prosecution, and when it is that the statute should be understood as allowing it, what general intervals should guide? >> the general principles i think it kind of emerge from looking at with the office of legal counsel has done. o for example, if respect to a federal statute that prohibited appointments to courts, for people with certain degrees, the office of legal counsel said this infringes on the power to appoint federal judges. nd it cannot be presumed that congress intended to do that because it would raise a very serious constitutional question. the president is out.

and there are categories of statutes where the president is in, like for example the grassroots lobbying statute, the office of legal counsel wrote an opinion about that and it said for the president or other public officials to into the world and promote their programs, that can't be would congress intended to prevent. what it did intend to prohibit is using federal funds to gin up an artificial restaurants campaign that gave the appearance of emerging from the people but it was really top- down. the office of legal counsel said president and officials who carry out the present's mandates are subject to that statute. so that is a more nuanced one. and the third example i will give you is that the statute that would permit prosecution for contempt of congress. the office of legal counsel concluded that a good faith assertion of executive privilege as a reason for not providing information to congress would preclude prosecution because congress cannot be deemed to him -- to

have altered the separation of powers in such a manner. i think olc probably would've gone on to say if congress tried to do it, it would be deemed unconstitutional. but again, this was a statute that did not specifically name the president. there only two that do that. so the entire corpus of federal criminal law including bribery, fences, sedition, murder, and i'll be off limits if it were taken to the extent that some of the questions have suggested. the general principle, it does raise a serious constitutional question. and if so, to what extent can be carved out individually? and there may be some instances where the statutes here could be carved out in the particular act could be found to be protected. or, does the statute across the board in such a wide range of applications, somewhat analogous to overbreadth analysis, infringe on the president's power ? >> that set of issues, they seem important. and may occasionally be difficult. they also seem not really before us in the way justice

jackson suggested earlier. do you think they are before us, we should clear it up, here it is, we have a case? what else could we do? how should we deal with this that there are these lingering issues that go beyond the question of whether there is the kind of absolute immunity that the former president is invoking. >> i think anthe court has discretion to reach that issue, even though justice jackson is totally right, it was not raised in the district court and it was not raised in the court of appeals. the analysis i would use to get there is a fusion of a couple of principles. one is the court has often resolved threshold questions that are a prerequisite to an intelligent resolution of the question presented. in a case like united states versus grubbs for example, the court reached out to decide whether anticipatory warrants are valid under the sofourth amendment before turning to the question of whether the triggering condition for

anticipatory warrant had to be worn. that is one principal. and then a precedent that bears some analogy to this is vermont natural resources agency versus stevens. the first question was whether a state agency was a person within the meaning of a claims act and the second question was whether if the state agency was 11th amendment immunity kicked in, and the court wrote an analysis of white could reach both questions. reaching the person question did not expand the courts jurisdiction and it made sense as a matter of constitutional avoidance to do that. there are some considerations that cut against this. i want to be clear that for overall government equities, we are not wild about parties who raise and immunity case that can be presented to a court on the appeal and smuggling and

other issues. so we want to guide the court not to have an expensive approach to that issue. but the final thing i would say about this is part of our submission to this court is that the article one branch and article 2 branch are aligned in believing that this prosecution is an appropriate way to enforce the law. congress, by making the law, the current executive, by deciding to bring it. is a building block of that submission is that congress actually did apply these criminal laws to official conduct, the court may wish to exercise its discretion to resolve that issue. >> i have one less of the questions which has to do with the official unofficial line. you heard mr. sauer's responses to both justice barrett's questions and my questions about what he thinks count is official here and what he thinks counts is unofficial here. i'm wondering what you took from his responses and also how

you would characterize what is official and what is not official in this indictment? >> so, i think petitioner conceded that there are acts that are not official or alleged in the indictment. we agree with him on all of that. i think i disagree with him on everything else he said about what is official and what is not. organizing fraudulent slates of electors, creating false documentation that says i'm an elector, i have been appointed properly, i'm going to send a vote off to congress that reflects that petitioner won rather than the candidate that actually got the most votes and it was ascertained by the governor and whose electors were appointed to cast votes, that is not official conduct. that his campaign conduct. and i think the d.c. circuit did draw an appropriate distinction. a first-term president running freely -- running for reelection can act as office

seeker or office holder. and when working with private lawyers and in a private public relation advisor to gin up fraudulent slates of electors, that is not any part of a president's job. >> there is an allegation in the indictment that has to do with the removal of a justice department official. is that protected conduct? >> we don't think that is core protected conduct. i don't think i would characterize that episode that we. we agree the department of justice allegations were use of the president's official power. in many ways, we think that aggravates the nature of this offense. seeking as a candidate to oust the lawful winner of the election and have oneself certified with private actors is a private scheme to achieve a private and and many of the

co-conspirators alleged in the indictment are private. but for an incumbent president to then use his presidential powers to try to enhance the likelihood that it succeeds makes the crime in our view, worse. in the department of justice episode, this occurs late in the election cycle after many other schemes had failed. wh at that point, the petitioner is alleged to have tried to pressure the department of justice to send false letters to the states claiming that th there were serious election irregularities and they should investigate who they certified as the president. none of this was true. the department of justice officials said this is not true. we are not going to do that. and at that point, petitioner is alleged to have threatened to remove the department of justice officials who were standing by their oath and replace them with another person who would carry it out. we are not seeking to impose criminal liability on the president for exercising or

talking about exercising the appointment and removal power. no. we are seeking to impose criminal liability for is a conspiracy to use fraud to subvert the election, one means of which was to try to get the justice department to be complicit. the case would've been no different if petitioner were successful and he had actually exercise the appointment and removal power and had gone through those fraudulent letters were sent. it would've made the ski more dangerous but would not of changed the crime. >> how we think about things like conversations with the vice president. in other words, things that if you state that way it's clear they would fall under executive privilege. but how does that relate to the question we are asking here? >> this is one of the most difficult questions for the department of justice. and i want to explain why that f is. if we are operating under a fitzgerald versus nixon lens and looking at this the way we look at things in there is a private lawsuit filed against the president, we take a very

broad view of with the outer perimeter of official presidential action is. in order to d be protective of the president as this court explained, can be very deleterious to the president's conduct of business. if we were putting this under a fitzgerald lens, we would then have to answer the question, was he acting in the capacity as office seeker or was he acting in the capacity of office holder? if you run through the indictment, you can find support for those characterizations and the department of justice has not yet had to come to grips with how we would analyze that set of interactions. >> thank you. >> justice gorsuch? >> if you did, i wanted to confirm, i thought i heard the framework was appropriate. >> largely yes, we agree with the idea of the distinction

between officeholder and office seeker. we also agree that if it is t objectively reasonable to view the activities as those of officeholder, then the fitzgerald immunity kicks in. i think we would look more at the content of the actual interaction in order to make that determination then blasingame suggested at least on the facts of that case. >> i'm just to understand what nuance you are suggesting? >> so blasingame adopted, generally very favorable pro- government framework that we endorse. yo not here. because we don't think that fitzgerald applies. >> and -- i understand that. putting that aside, the distinction between official act and private office seeker, their test is, you think, good

enough for government work? >> on this one, the department hasn't taken the next step since the blasingame decision. let me offer a few thoughts that might clarify it. the blasingame decision focused on objective contextual indications to try to see whether the president was acting as a campaigner as opposed to an officeholder. i think that that decision can also be made by looking at what the president actually said. let me illustrate that with an allegation. >> weekly. >> in one of the interactions between petitioner and a state official, petitioner is alleged to have said, all i need you to do is find me 11,000 votes and > change. i think if you look at that content, it is pretty clear

that petitioner is acting in the capacity as office seeker, not as president. and we would look at that content. >> but i am just focused on the legal test. i'm not hearing any objections to it. >> other than i think the d.c. circuit placed more content consideration off-limits than i would. >> okay. and then i wanted to understand on the core immunity, or whatever word we use, that it seems to me we are narrowing bu the ground of dispute here considerably. to we look at motives, the president's motives for his actions? i mean, for example, he has lots of war powers, as we discussed. but he might use them in order to enhance his election, his personal interests. is that a relevant consideration when looking at core powers? >> so i am thinking of this more as looking at the objective of the activity, as opposed to the kind of subjective motive in the sense that your honor suggests.

i think there is a lot of concern about saying, an electoral vote to be reelected. >> every first-term president, everything he does can be seen through the prism by critics at least, of his personal interest in reelection. so you wouldn't want that, i would think you would say, personal motivation is off limits with respect to the core powers. >> with respect to the core powers, we think those are just things that can't be regulated at all. like the pardon power. >> regardless of motive. >> correct. >> so then we are in the non- core powers is what we are fighting over. what role do motives play there? one could remove an appointee -- first of all, let me ask this first. is removing an appointee, a presidential appointee, a core power or non-core power? >> here i might need to differentiate between the principal officers in cases

like myers has regarded as having constitutional status of being removal at will from inferior officers were congress does have some regulatory attitude to impose restrictions on removal. >> let's put that aside. i understand that. >> putting that aside, appointing a principal officer is a core power am not prepared to say that there is no potential criminal regulation to say you can't do it for corrupt purposes to enrich yourself, for example. >> bribery. all right. that is what i was wondering, do motives come into the core power analysis or not? i thought i heard no and now i r am hearing maybe. >> i think it might be more appropriate is maybe because it's not involved in this case, the department has not had to take it position on exactly how these core powers would be resolved as applied

constitutional analysis. none involved in this case. >> i am wondering, i'm not concerned about this case as much as future ones, these non- core powers if you are allowing in motive to color that, i'm wondering how much is left of either the core or noncore powers. >> i would be fine with carving that out and deeming that to be something that is intrinsic in our electoral system. we are not talking about applying criminal law to somebody who makes an announcement that this program will be good for the united states and somebody could come along and say, well, you really did it to get reelected. leaving aside whether any event -- whether any of that violates a criminal law, let's assume that it does. i'm doubtful that it does because i don't think criminal laws generally operate on motives as opposed to objectives and purposes. >> intention aside, intention is

a motive and a motive is an intention, leave that aside. >> putting that aside, that really to me falls in a very different category, and it is also -- >> there are some motives that are cognizable and others that aren't. i mean, it is awkward when we look back at the injunction of the early cases. you can't enjoin a president. you couldn't hold him in contempt. for sure. >> can i try one more time to clarify? >> spin this out just a second. it didn't matter what the president's motives were, we are not going to look behind it. same thing with nixon. we said, gosh, nixon versus fitzgerald, that is something courts shouldn't get engaged in because presidents have all manner of motives. and again, i'm not concerned about this case, but i am concerned about future uses of

the criminal law to target political opponents based on accusations about their motives. whether it is reelection or who knows what corrupt means in 1512 -- we don't know what that means. maybe we will find out sometime soon. but the dangerousness of accusing your political opponent of having bad motives, if is -- if that is enough to overcome your core powers or any other limits, reactions, thoughts? >> yeah, i think you're raising a very difficult question. >> that is the idea. >> that is the idea. >> testing the limits of both side arguments. >> and i'm going to say something i don't normally say, which is that is really not involved in this case. [laughter] we don't have bad political motive, in that sense. >> i appreciate that, but you also appreciate that we are writing a rule for the ages.

>> i think i would start by looking at the statutes. seeing what restrictions they do place on the president's conduct. for example, the statue that prohibits fraud to defeat the lawful function of the united states. the statute defines what the purpose is that the defendant has to have in mind. it has to be to defeat something that the united states is doing and it has to be by deception. i don't think that gets us into the realm of motive-hunting in the area where we are as concerned as the corporately -- as the court would be about doing something that would undermine the presidency and the executive branch. and 1512 c2, we may have different views on the clarity and the scope of that statute. i think of the court -- if the court does interpret corrupt as involving a consciousness of wrongdoing and elevates that the consciousness of illegality, and we are in a different realm. -- then we are in a different realm. wanting to get reelected is not

an illegal motive and you don't have to worry about prosecuting presidents for that. >> thank you. >> justice kavanaugh? >> as you've indicated, this case has huge implications for the presidency, and the future of the presidency, for the future of the country, in my view. you have referred to the department a few times as having support of the position. who in the department? the president, the attorney general? >> solicitor general the united states. part of which the way in which the special counsel functions is as a component of the department of justice, the regulation and vision, that we reach out and consult, and on a question of this magnitude that involves equities that are far beyond this prosecution, as the questions of the court. >> so the solicitor general. >> yes. >> second, like justice gorsuch, i'm not focused on the hearing -- here and now now of this case. i'm very concerned about the future. i think one of the court's biggest mistakes was orson vs.

olson. i think that was a terrible decision for the presidency and for the country. and not because there were bad people who were independent councils, but president reagan's ministration, president bush, president clinton's were really hampered, in their view, all three, by the independent counsel structure. and what i'm worried about here is that, let's relax article two a bit for the needs of the moment. and i'm worried about a similar kind of situation applying here. that was a prosecutor investigating a president in each of those circumstances, someone picked from the opposite party, current president, usually was how it worked. justice scalia wrote the fairness of a process must be judged on the basis of what it permits to happen, not what it

produces in the particular case. you've emphasized many times regularity of the department of justice. and he said, and i think this applies to the independent counsel system and can apply if presidents are routinely subject to investigation going forward. one thing is certain, however, it involves investigating and perhaps prosecuting a particular individual. can one imagine a less equitable manner of fulfilling the responsible is possibility to prosecute? what would the reaction be if in an area not covered by the statute, the justice department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? does this not invite what justice jackson described as picking the man and inserting the -- and searching the law books or putting investigators to work to pins and effects on him? to be sure the investigation must relate to the area criminal offense testified by the statute.

nothing prevents it from being very broad. i paraphrase at the end because i am referring to the judges. that is the concern going forward, is that the system when former presidents are subject to prosecution, it tells us is not going to stop, it's going to cycle back and be used against the current or next president and the president after that. all that, i want you to try to allay that concern. why is this not morrison v. olson redux if we agree with you? >> first of all, the independent counsel regime did have many structural features that emphasized independence at the expense of accountability. we don't have that regime now, but even under that regime, i think if you looked at lawrence walsh's report on iran contra, i think it goes to a very

fundamental point for the court to consider. judge walsh said, i investigated these matters, the proof did not merely come close to establishing criminal violation. so we have lived from watergate through the present, through the independent counsel era, without these prosecutions having gone off on a runaway train. with all its flaws. >> i think president reagan, bush, and clinton whether rightly or wrongly thought contrary to what you just said. >> i think nobody likes being investigated for a crime, but it didn't result in the kind of vindictive prosecution that i think your honor is raising. we have a different system now. i think there was a consensus throughout washington that there were flaws in the independent counsel system. if lapsed, we now are inside the justice department with full accountability resting with the attorney general, so the special counsel regulation now doesn't operate the way that the independent counsel regulations do.

and this court would have something to say about it, i think, if the statute were revived. i'm not sure anybody is in favor of that. >> i was saying this is a mirror image of that, is one way someone could perceive it. but i take your point about the different structural protections internally. like justice scalia said, i do not mean to suggest anything of the sword the present case, we are not talking about the present case. i'm talking about the future. another point, you talked about the criminal statute. it's very easy to characterize presidential actions as false or misleading under vague statutes. so, president lyndon johnson, statements about the vietnam war, say something is false. it turned out to be false that he says about the vietnam war. -- what he says about the vietnam war. 371 prosecution after he leaves office? >> i think not.

this is an area that i do think merits some serious and nuanced consideration. statements that are made by a president to the public are not really coming within the realm of criminal statutes. they've never been prosecuted. i realize that the court can say what if they were? and then i think you get to what i would regard as a hard constitutional question. i would probably guide the court away from trying to resolve today, although i do think it is very different from our case and in distinguishable and important ways. but you are dealing here with two branches of government that have a paramount interest in the integrity and freedom of their interactions with each other. on the one hand, the president of course should be very free to send, usually, his cabinet officials and subcabinet officials to congress to provide them with the information needed to enact legislation and to make national policy. and we are very concerned about anything that would trample

that. on the others the -- on the other side of the equation, congress has a compelling interest in receiving accurate information and at the very least, information that is intentionally and knowingly false. that would pollute -- >> how about president ford's pardon? very controversial in the moment. >> yes. >> hugely unpopular, probably why he lost in 1976. >> yes. >> now looked upon as one of the better decisions in presidential history, i think, by most people. if he is thinking about, if i grant this pardon to richard nixon, could i be investigated myself for obstruction of justice on the theory that i'm interfering with the investigation of richard nixon? >> so this would fall into that small core area that i mentioned to justice kagan and justice gorsuch of presidential responsibilities that congress cannot regulate. >> how about president obama's

drone strikes? >> the office of legal counsel looked at this very carefully and determined that, number one, the federal murder statute does apply to the executive branch, the president would be not personally carrying out the strike, but aiding and abetting laws are broad and it is determined that a public authority exception that is built into statutes and that applies particularly to the inverter statute talks about unlawful killing did not apply to the drone strike. so this is actually the way that the system should function. the department of justice takes criminal law very seriously. it runs through the analysis very carefully with established principles. it documents them, explains them, and then the president can go forward in accord. -- in accordance with it. and there is no risk of prosecution for that course of activity. >> thank you for your answers. justice barrett. >> i want to pick up with that public authority defense. i'm looking at that llc memo that david baron wrote that you cited in your briefs. he describes the public

authority defense setting the -- citing the model penal code with a few different definitions, but i will just highlight this one. justifying conduct which is required or authorized by the law, defining the duties or functions of a public officer, the law governing the armed services or lawful conduct of war, or any other provision of law imposing a public duty. that sounds a lot like dividing a line between official and private conduct. i think it is narrower and i recognize it is in his defense, not immunity. but when we look at the definition of it, are you acting within the scope of authority conferred by law, discharging a duty conferred by law? i think it is narrower than lesson game -- blasengame, nixon and fitzgerald, that is what it sounds like to me. do you agree or disagree? >> i certainly understand the intuition that when you act outside of your lawful authority, you kind of been no -- you kind of are no longer

carrying it out. i don't think that that quite works for presidential activity. the only way he could have implemented the orders is by exercising his commander-in-chief authority over the armed forces or his authority to supervise the executive branch. those seem like poor executive asked to be. -- core executive acts to me. there is such a possibility as an unlawful executive act. >> i'm not sure i understand your answer. it seems to me that in your brief today, when you referred to the public authority defense, you said that is one of the built-in protections of why immunity is not necessary. because in some of these instances, when the president takes such action that the court has been asking, might this result in criminal prosecution, you say well he could raise this public authority defense. i'm saying isn't this public authority defense, if raised, doesn't it sound like a defense that says, well, as authorized by law, to discharge dysfunction? -- i was authorized by law, to

discharge dysfunction? and therefore i acted lawfully. not criminally liable. >> correct. >> did that involve a look into motives, kind of like what justice gorsuch was asking? could you say i was acting within the scope of my authority by granting a pardon, removing a cabinet officer, but then the public authority defense might not apply because you had a bad motive in doing so? >> no, i don't think so, justice barrett. i think it operates based on objective facts disclosed to counsel. counsel dunn provides the advice. in this case the department of justice, and it is an objectively valid defense, a complete defense to prosecution. >> what would be so bad? one thing that strikes me as different, or one thing that is obviously different between the public authority defense and community is the interlocking appeal and having it resolved at the outset. what would be so bad about having a question like that resolved at the threshold, having the and immunity? -- having it be an immunity?

at the same time to question they could be brought up as a threshold and then it interlocking appeal would be a freedom from standing trial, but not a get out of jail free card. >> i understand that. i think if the court believe -- the court believes that with the appropriate way to craft presidential protections, it has the authority to craft procedural rules that implement its article two concerns. that said, public authority, we are calling it a defense, but under many statutes it is actually an exception to liability self. -- liability itself. what you are really talking about is trying the general issue. generally, in criminal cases, even cases that involve first amendment issues like threat statutes, the jury is the determinant of facts. and i have a little bit of difficulty with the idea of trying the whole public authority issue separately to the judge and having that go up on interlocking tori appeal before you could get into a

criminal case. that said, i would rather that , a regime in which the court alters some of the procedural rules surrounding the president, then a total absolute blanket immunity that takes away the possibility of criminal prosecution, even if it is a core violation of the statute of attorney general advice and has no overriding public authority. >> you think it has to be a jury question? i wasn't necessarily proposing actually treating it as a defense that was going to be done at the outset and subject to appeal, i was proposing what about and immunity doctrine a true from the public authority defense of the department of justice that they think would otherwise apply? so just go with me on that for a minute. why would it be so bad for it not to be a jury question? it seems to me some of these article two concerns would be exacerbated by having it go to a jury rather than a judge. >> i think some of them are

judge questions that could be resolved in the face of the indictment. if the department of justice ever returned an indictment that said the issuance of this pardon or this series of pardons constituted obstruction of justice, i have a little difficulty hypothesizing it, but a motion to be made on the face -- could be made on the face of indictment that says article two includes congress from regular things activities, the indicted needs to be dismissed. if the court wished to attach to that kind of a rule interlocutory appeal, that would be a lesser safeguard than the one that my friend is proposing here. other kinds of defenses really do intersect with the general issue, and for those i have a much greater time seeing how the courts could implement that. and would there be cost going to trial? yes, there is no perfect system here. we're trying to design a system that preserves the effective

functioning of the presidency and the accountability of a former president under the rule of law. and the perfect system that calibrates all of those values probably has not been devised. i think that the system that we have works pretty well, maybe it needs a few ancillary rules. it is different from the radical proposal. >> i agree. that me ask you about state prosecutions, because if the president had some kind of immunity that is implicit in article two, then that immunity would protect him from state prosecution, as well. a lot of the protections you are talking about are internal protections that the federal government has, protections and the partner justice which obviously are not applicable at the many state and local jurisdictions across the country. what do you have to say to that? >> that brings in the supremacy clause issue. the court would run a supremacy clause analysis that would probably start with basic

principles, like mcculloch versus maryland. the states do not have the authority to bird and federal functions and then would kind of move through and re-nagel where the court said that a state murder prosecution of a federal official guarding the supreme court justice and who fired a shot was not permissible. if the court thought that you needed a more categorical rule for the states, i think the supremacy clause certainly leaves it within the court's prerogative to determine that the president, unlike all other officials, deserves more of a robust federal defense than what i have just devised. >> but it would still be a defense in the states. that is my point. it is one thing to say the president, they are not going to be these prosecutions that were politically motivated that might be the danger of the system. what justice kavanaugh was referring to. that might not carry the day, but that is a concern. it is totally different when you

take it outside the department of justice and its structures and then you throw it out elsewhere. the idea across the states, the idea of an immunity i think has a lot more purchase if you are talking about something that protects the former president from standing trial at a state and local level. >> so, i don't know that you would have to design a system in which the president would have to stand trial at the state and local level. it is certainly within the court's authority as a matter of supremacy clause law to find and immunity. -- find an immunity. but we have been talking here about to some length the distinction between official acts and private acts. >> yeah. >> that will have to be determined by some sort of a process. any immunity defense that the court announces can still be met by a state assertion that we are prosecuting private conduct, you are going to have to have some process. i think having some legal process is not a reason to cast aside a nuanced system that actually looks at what protections are necessary as

opposed to what would provide the absolute maximum insulation for former presidents, even if we acknowledge that it is highly prophylactic. >> totally agree, and i wasn't contrasting the absolute immunity rule, but saying if there is some sort of official private, the consequence of making immunity. and since you brought up the private act, this is my last question. i had asked on page 46 and 47, you say even if the court were inclined to recognize some immunity for a former president's official acts, the indictment alleges substantial private conduct and you said that the private conduct would be sufficient. >> yes. >> the special counsel has expressed some concern in speed and wanting to move forward. the normal process would be for us to remand, if we decided that there were some official acts of immunity and to let that be sorted out below. it is another option for the

special counsel to just proceed based on the private conduct and drop the official conduct. >> well, two things on that. first of all, there's really an integrated conspiracy here that had different components as alleged in the indictment. working with private lawyers to achieve the goals of the fraud, and as i said before, reaching -- the petitioner reaching for official powers to try to make the conspiracies more likely to succeed. we would like to present that as an integrated picture to the jury so that it sees the sequence and the gravity of the conduct and why each step occurred. that said, if the corporate to -- if the court were to say that the elector scheme is private, reaching out to state officials as a candidate is private, trying to exploit the violence after january 6 by calling senators and saying please delay the certification proceeding is private campaign activity, we

still think contrary to what my friend said that we could introduce the actions of the justice department, the efforts to pressure the vice president for their evidentiary value as filling the defendant's knowledge and intent and we would take a jury instruction that would say, you may not impose criminal culpability for the actions that he took, however, you may consider it insofar as it bears on knowledge and intent. that is the usual rule with protected speech, under wisconsin v. mitchell for example. my friend analogize this as a speech for debate clause but we don't think the speech for debate clause has any applicability here. it is a very explicit constitutional protection that says senators and representatives shall not be questioned in any other place, so it carries an evidentiary component that is above and beyond whatever official act immunity he is seeking. and the last thing i would say on this, we think that the concerns of the use of evidence of presidential conduct that might otherwise be official and subject to executive privilege is already taken care of by

united states v. nixon. that balances the president's interests and confidentiality against the need of the judicial system for all available facts to get to the truth, and once that has been overcome, we submit the evidence can be used even if culpability can't rest on it. >> thank you. >> justice jackson. >> just to pick up where justice barrett left off, i think i heard you say that even if we decide here's something, a rule that is not the rule that you prefer, that is somehow separating out private from acts -- private from official acts and saying that that should apply here, there is sufficient allegations in the indictment, in the government's view, that fall into the private acts bucket that the case should be allowed to proceed, correct? -- to proceed? >> correct. >> because in an ordinary case, it wouldn't be stopped just because some of the acts are allegedly immunized, even if people agree that some are immunized.

even if people agree that some are immunized. if there are other acts that aren't, the case would go

forward. going back to the clear statement argument, my understanding was that when a charged criminal statute is read narrowly in the presidential context did not apply to the president, a constitutional question is being avoided. you are doing that to avoid having to deal with the constitutional question. what is the constitutional question that is being avoided? >> this is just an application of this court ordinary construction of criminal statute that if there is an available interpretation that would avoid a serious constitutional question, the court preference is to -- >> my understanding is that what is being avoided in that situation is the question of whether a former president can be held criminally liable for doing the alleged act that is being asserted in that statute consistent with the constitution. so we look at the statute, it has gotten elements in it and we are saying if this statute and those elements applied to the president's conduct in the situation, we have to answer the question in the president be held liable consistent with the constitution for that? >> the first step in the analysis, there's no ambiguity in those. similar words, any person applied to government officials. >> let's just assume. i guess i'm just trying to get that we are avoiding a constitutional question if we do that in the ordinary case, and what is confusing to me about this case is that we are not

being asked to avoid the constitutional question. in fact, the question of whether or not a president can be held liable consistent with the constitution or does he have immunity is the question that is being presented to us. so i don't understand how the clear statement kind of analysis even works. it seems completely title logical to me for us to all the presidents cannot be prosecuted under any criminal statute without a clear statement from congress to avoid the question of whether or not the constitution allows them to be prosecuted. you have to have a reason, right? you have to have a rationale for applying the clear statement rule. >> there would have to be some rationale that is not evident in either the existing doctrine or the text. just one data point for the court in thinking about how the clear statement rule works, a case about gratuities and the court is probably familiar with,

justice scalia wrote an opinion for unanimous court in which he used a hypothetical about what would happen if the president received a sports replica jersey at a typical white house event, would that violate section 201c? the court offered a construction that it had to be because of an official act to avoid that problem. i think if there was such a well-received understanding that presidents are not included in general federal criminal law unless a president is specifically named, which he is not, justice scalia would have thought of that and some member of the court would have reacted. and none did. >> let me go on to ask about what you take the partition's position to be in this case. because we had a lot of talk about drawing the line, justice kavanaugh, justice gorsuch suggested that we should be thinking about first, we have

private vs. official. and then within official we have some thing that core acts vs. other acts as we try to figure out at what level the president is going to have immunity. but i took the petitioners argument in this case not to be inviting us to engage in that kind of analysis. i thought he was arguing that all official acts did immunity, -- get immunity, and so i didn't understand us to be having to drill down on which official acts do. so my question is why isn't it enough for the purposes of this case, given with the petitioner has argued, to just answer the question of whether all official acts get immunity? >> that is enough and if the court answered that question the

way that the government has submitted, that resolves the case. i want to make a clarification that i may have left the court with some uncertainty about. the official act analysis that my friend is talking about is the fitzgerald vs. nixon out of perimeter test which is extremely protective of the president. it is saying that everything the president does is a target for lawsuits. that is not a great thing and therefore they are all cut off. >> anything that is official in the outer perimeter is not subject to liability. so we don't have to then go well, we have an official, which within that might be subject to liability? not on the theory of absolute immunity. >> neither on the theory of absolute immunity or on our theory. on his theory, everything is protective. on ours, there is no immunity but this is where i've detroit

-- where i have drawn the distinction. there is application of constitutional challenges that you run through the youngstown framework and this court's customary method of analysis and you determine whether there is an infringement of article two. >> so what you're saying is even if we reject the absolute immunity, it is not as though the president doesn't have the opportunity to make the kinds of arguments that arise at the level of this particular act or this particular statute as a problem in retrospect? i think i hear you saying we should not be trying to, in the abstract, set up those boundaries ahead of time as a function of the blanket immunity to allow each allegation to be brought and then you would decide in that context? >> yes, with the additional note that petitioners never made that argument and think it would be up to a district court to decide whether to go that route at this point in the litigation. you have put all of his eggs in the absolute immunity basket. >> and if we see the question presented is broader than that

and we do say let's engage with core official and not core and try to figure out the line, is this the right vehicle to hammer out that test? i mean, i had understood that most if not all of the allegations here, there's really no plausible argument that they would fall into core vs. not such that they are immune. >> we don't think there are any core acts that have been alleged in the indictments that would be off-limits as a matter of article two. >> so if we are going to do this kind of analysis, try to figure out what the line is, we should probably wait for a vehicle that actually presented in a way that allows us to test the different sides of the standard that we would be creating, right? >> i don't see any need in the -- this case the court to embark on that analysis. >> the final set of questions that i have has to do with what i do take as a very legitimate

concern about prosecutorial abuse, about future presidents being targeted for things that they have done in office. i take that concern, i think it is a real thing. but i wonder whether some of it might also be mitigated by the fact that existing administrations have a self-interest in protecting the presidency, that they understand that if they go after the former guy, soon they are going to be a former guy and they will have created precedent that will be problematic. so i wonder if my comment on whether some of the caution from the justice department and the prosecutors and whatnot comes from an understanding that they will soon be former president as well. >> absolutely, and i would locate this as a structural argument that is built into the constitution itself. the executive branch, as this

court knows, as executive branch -- has executive branch interests that at times asserts in opposition to congress, so that the proper functioning of the president is protected, and i believe that that value would be operative and use operative in anything as the mentis discharging a former president with a crime. >> and i would also say i think in ask you to comment, presidents are concerned about being investigated and prosecuted, and it chose to some extent their ability to do what they want in office. that is a concern on one side. but can you comment on the concern about having a president unbounded while in office? a president who knows that he does not ultimately have to follow the law because there is nothing more than political accountability in terms of impeachment? we have amicus briefs from

professor lederman who says the president would not be prohibited by statute from perjuring himself under oath on official matters, from corrupting or concealing documents to prevent them from being used in official proceeding, from supporting others to commit perjury, bribing witnesses or public officials. he goes on and on about a president in office with the knowledge they have no criminal accountability would do. i see that as a concern that is at least equal to the president being worried, so worried in his ability to function. so could you please talk about those competing concerns? >> justice jackson, i think it would be a change that no president has had or has needed. i think we have also had a perfectly functioning system that has seen occasional episodes of presidential misconduct.

the nixon era is a paradigmatic one. the indictment in this case alleges another. for the most part, i believe that the legal regime and the constitutional regime that we have works, and to alter it poses more risks. >> thank you. rebuttal? >> i have nothing further, y