from prosecution. >> we will hear argument this morning in case 20 39 39, trump versus united states. >> mr. sour? >> mr. chiefusce and may it please the court, without presidential immunity from crimalrosecution, there can be no presidency as we know it.

for 234 years of ameca history, no president was ever prosecuted for his oicl act. the framers of our constitution viewedn ergetic executive as essential to securing liberty. if a president can be charged, put on trial and in prison for his most controversial decision asoon as he leaves office, that looming threat will distort the president's decision-making precisely when bold and fearless action is most neede every current esent will face de facto blackmail and toion by his political rivals while he is still in office. e plications of the court's decision here extend far beyd the facts of this case. could president george w. bush have been sent to prison for obstructing an official proceeding oalgedly lying to congress to induce war in iraq?

cod president obama be charged with murder for killing u. citizens abroad by drone strike? could president biden someday be charged with unlawfully inducing immigrants tenr the country illegally for his border policy. the answer to all these questions is no. prosecuting the president for official acts is an invaon with no foothold in history or tradition and incompatible with our constitutional structure. the original meaning of the executive vesting clause, the framers understanding and broken historical tradition spanning 200 years and poly considerations rooted in the separation of powers a cnsel against it. i welcome the courts questions. >> mr. sauer, to your last point koba could you be more precise? -- youroi. could you be more precise?

>> it's rooted in the vesting clause. >> how does that happen? >> theoue of it is that the executive vesting clause does t clude only executive powers laid out there d t encompasses the powers originally understd be included therein and marbury against madison itdes evidence this meant community -- this kind of immunity that protects the president's official acts from scrutiny sitting in judgment of the articles. that matches the original understanding t executive order. >> how exactly would we determine what an official act is? >> i point the court to two cases for that. fitzgerald against nixon is the best guidance the court gives, the outer perimeter test and the court engaged in analysis

that look at the levelf specificity at which the acts are scbed and that case which was a civil case. >> let's say the officials appointing ambassadors in the -- and the president appoints a particular individual to the country but it's in exchange for a bribe and mebody says i will give you $1 million if i am made ambassador. how do you analyze that? >> that would follow this discussions in brewster that bribery is not an official a which matches a common-law background. the way the court distinguished is these a n official acts. it would be essentially unrestricted will before the congress. >> accepting the bribe is not an official act but appointing an ambassador certain whin the official responsibility of the president. how does your official acts or the official acts order or

boundary come into play and i's going to be official assuming the president is innocent. the questi iwhether he will be found innocent or guilt >> again, i think bruce versus johnson in a slightly different context. the indictment has to be expunged, all the immune official acts determine what's official and wh's not official. >> you say we are prosecin because you accepted $1 million as -- are you pped to not say what it's for because within the president's official duties? >> there wldave to be an individual source of evidence for that. this iicent charges what this court describes as un to scriptable powers by the president. th are purporting to regulate the exercise of the presiden things like his ability to speak rectly to the american public

and core exercises of his authority under the recommendations clause. the meur he thinks necessary and expedient. you have an indictment of this case that goes of the arand of the president's powers. it alleges a sieof official acts and tries to tie them together by saying there was a private purpose in that case and th's the situation which could be -- ihas to be alleged but it s be proven. it's a concept long viewed as an -- is appropriate that there is something so fundamentally evil that they have to be protected agains i think and your answer bew, will give you a an to say if you stay by it -- if the president decides that his rival

is a corrupt person and he orrs the military or order someone to assassinate h, that within his official acts for which he can get immunity? >> that could well be an official act >> it could and he's doing it for person reasons. he's not doing it like president obama's alleged to have done it to protect the country from a terrorist. he's doing it f psonal gain. isn't thatheature of the allegations here? that 's not doing them -- these acts for furtherance of an official responsibility. he's doing it for personal gain. >> i agree with the characterization in the indictment and that confirms because the characterization is thatheeries of official acts --

>> community says even if you -- no becau immunity ss even if you did it for personaga, we will hold you responsible. how could that be? >> that's an extremely strong contradiction of this case. >> we go back to justice thomas's question which is where does that come from? there are amica who tell us the founders actualltaed about whether to grant immunity to the president. in fact,hehad state constitutions that granted some criminal immunity to goverrs and yet they didn'ta it up. instead, they ss an impeachment clause that basically says you cannot remove the president from office except by a trial in the senate but you caimpeach him after. or you can impose criminal

liability. we would be creating a situation in which we ulbe saying, this is what you are asking us to say which is that a president is entitled not to make mistake but more than that. the president is entitled for total person gn to use the trappingofis office, that's what you are trying to get us to hope. without facing criminal liability. >> i would say three things in response. the doctrine tt munity does not turn on allegedly proper motivation is something this courhareaffirmed in at least nine or 10 -- >> absolute immunity but qualified immunity says whatever act you take has to be within what a reasonable person would do. i'm having hd time thinking

that creating false documents that smiing false documents, th ordering the assassination of a rival, accepting a bre and countless other wshat could be broken for personal gain, that anyone would say that it would be reasonable for a president or any public ofcial to do that. >>hiwas answered very persuasively in fitzgerald that this particular act wod done for an unlawful purpose or was unlawful ulbe in every case and thereforef at was the doctrine that the allegation of improper purposes what deprives the objective act or of immunity that imni would have no purchase and that's reflected in many cases. >> isn't the work of the improper motive at least in the absoluteity context to tell us what our official acts and what are not?

understood that even -- first of all, your ask is your principal position. you want the samki of doctrine we've applied in other contextsheyou say in official has absolute immunity. my understanding is when we sa that, we mean for their official acts. is that right? >> yes. >> so any official acts in that world, the real decision-making from a crttandpoint is whether or not something is an official act or not, correct? that's an important determination. >> that's the determination in the absolute immunitwod because of you determine it's an official act, then the principle is you get immunity for it, correct? >> that is correct. >> my question is how do you determine or maybe justice thomas, how do you determine what's in official act? we talk about the kinds of scenarios justice somar brought up, one could say that when the president is using the

trappings of his office to achieve peonal gain, he's actually not acting officially even at the doctrine was absolute immunity so what doou say about that? >> to the last point, that allegation that this was motivated by an improper private purpose could be made in every ng case. >> i understand that but it would have to be made just even if we had the doctrine of absolute immunity, that me allegation and the facts related to it would come in because the person would be arguinth he was not acting in his official capacity and not doing something official, he w dng it personal, coec >> i agree but the objective -- the point i would make is that in fzgald, they emphasize that would result in an intrusive diuson or determination of the presidents personal motives every official act.

this is not just in the case of the president. >> another quick question before my colleagues take it over -- at the beginning of your analysis when you're giving your opening statement, you were talking about, you suggested the lack of immunity and the possibility of prosecution in thpresidential contacts is like an innovation. i understood to be the status quo. i understood that every president from the beginning of time essentially has understood that thereas threat of prosecution if for no other reason tn e constitution suggests they can be prosecuted teimpeachment, that the office of legal counsel had id forever that presidents are amenable to a threat of prosecution and they have continued fction and do their job and do all the things presen do. it seems to me that you are king now for a change in what the law is related to imni. >> from what benjamin franklin

said at the constitutional conventi wch reflects the founders original understanding ich is at the constitutional conventio benjamin franklin said his three -- this provides one example only of a chief magistteho is subject to criminal prosecution and evyby cried out against that >> i understand but since benjamin franklin, everybody has thought incling the presidents who held the office that they reaking this office subject to potential criminal prosecution, no? >> i see the evidence going the other way. marby versus madison discusses brought immunity. >> what was up with the pardon r esident nixon? everybody thought that esidents couldn't be prosecuted, than what was that about? >> he was under investigation at the time with official and private couc everyone understands that since president grants carriage

riding incident, everybs understood that the present can be prosecuted. -- the president can be prosecuted. >> there seems to be common ou be just between you and your colleague and the other side that no man iabe the law and the president can be prosecuted after using his office for his private conduct, is that right? >> we agree withha >> aweave been exploring today, the question becomes and how to seege private from official conduct that may or may not enjoy some immunity and i'm sure we will spend a lot of time exploring that. in blasingame, the chief justice pressed 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 they came up with there? >> especially if it's understood through the lens of a separate

opinion is a persuasive test. would be a great source for this court to rely on. it emphasizes thbrdth of that test and talks about how actions that are plausibly connected to the president's official duties are official tsnd it emphasizes but close -- if it's a csed case or other considerations that should be treated as immune. those are the aspects of guiding this. >> it left open in that case the possibility of further proceedings and trial. >> exactly right and that would be a natural course for this court toakin this case. the cot ould and reverse the holding of the dc circuit that there is no thing is official acts -- >> you would agree further proceedingwod be required? >> that's correct. i would pot anderson versus creighton where there is two stages of ocdings. there is looking at the indictment and the charging domes and see if alleging

official acts and if not, determine there could be a factual proceeding under mitchell against foresythe -- would have to r. >> go ahead. >> you began whayobelieve that immunity from criminal prosecution is essentialor proper functioning of the presidency. my question is whether the very robustorof immunity you are advocating is really necessary in order to achieve that rul just to take one posbl alternative, supsehe rule were that a former president cannote osecuted for official acts unless no ausible justification could be imane for what the president did, taking into accounhiory and

legal precenand the infoatn that was provided to the president at the time when the act was taken. would that be sufficient? or why would it be in for sufficient >> that might be a much better rule that what emerged in the lowecose. -- the lower courts. we thi iwould be insufficient because t l is talking about using the presidents motives and intrusive consideration of t psidents motives as transforming acts official and unofficial would come into pl. once you can make that allegation, then you've opened the door you no longer have a clear rule. you have a determination in every single case. >> what if it did not involve any objeiv it would look objectively at the various relevant factors. >> that sounds a lot like blasingame. if you look at the sepat

opinion, that y t be different than what we propose in court today. >> blasingame had to do with the different dream private and fial conduct. >> that's what i understd. >> this would apply and it's a possibility but i don't know whether it's a good obaidea or can be derived from the structure of the constitution or any other source. but this would be pld in a purely objective grounds. when the president invokes an offici power in taking the action that is at issue. >>he reason i think of blasingame is it talks about an objective context with specific determination to winnow out what's official and private conduct. >> i'm sorry, if i understood justice ale suggesting not that.

he is suggesting wheth en if it is an official act whether you still grant immunity if that act does not plausib vwed as within the realm of law. he can correct me if i'm wrong. >> that was the question. >> that i think would be a superior rule then what is in the categorical lehat emerged in the trial. >> i'm not quite sure why he use the word plausible because that seems to negate, might is well -- might as well give absolute if you say plausible because anybody could argue plausibility. we don't even require plausible, we require reasonable and qualified immunity. >> one might argue that it is not plaulegal to order seal team six and i don't want to slander seal team six bec seriously they are hon.

they are bound by the uniform code of liry justice not to obey uawl orders. i inone could say that it's not plausible that that is legal, that the action woulde legal. i'm sure you've thought of lots of hypotheticals and i'm sure you have as we wre president could sai'm using an official power and yet the president uses it in an outrageous manner. >> that may well be an objective dermination. >> apply it the allegations here. what is plausible about the president asstg in creating a fraudulent slate of electoral candidates. assuming you a sect the ctof -- youcct the facts of

the complaint on their face, is that plausible that that would whin his rights to do? >> absolutely, we've had historical precedent with president grant sending federal troops to mississipptoake sure the republican electors got certified in thosewoases which delivered the election to rutherford b hayes. the notion that that is implausible,a't be supported based on this indictment -- >> knowing that the slate is fa a they weren't actually ected and they weren't certified by the state, he knows all those things? >> the indictment itself alleges an effects of word label to the -- affixesheord label to the word fraudulent. that's a complete mixed characterization. it was there no deceit about who had emerd om the convention and this was done on an alternative basis. wa to address the higher level point which is that there is a whole series of structural

checks other than criminal prosecutn at are designed to deter these kinds of outlandish scenarios or obviously illegal things. th's been viewed in this court's opinion -- >> where do you think the d.c. circuit judge wrong and how it -- went wrong in how it determedhat was official versus what personal? >> read the opinion below in this case. itoes not matter the logic of their opinion. there is no immunity for official acts and therorthat ishe end of the story. i don't really think they went wrong in blasingame when they engaged t same determination with respect to what's official and what isn't. there we agree with most of what that opinion says. >> foromofficial acts that are not within the article to -- the article ii exclusive power so official acts but not within t aicle to

exclusive power, even for those, i assume you would think that a clear statement has to be required, clear statement in the statute covering the president if the oicl acts are going to be criminalized. >> obvusly, at the highest ssle level when it comes to the unrestricted will powers in this indictment -- i'm assuming the exclusive powers are walled off d n't be prosecuted. there are a lot of official powers that arnoexclusive to the president under article two authority. for those, i understood you to say at a minimum, there would ne tbe a clear statement in the statute referencing the president so that the president is on notice and can conduct msf or herself accordingly. >> that's correct anth would be consistent. >> can i follow up oth? you can see ivate act don't get immunity. >> we do.

>> in the special counsel brief on pages 46 and 47, he urges us ev if we assume or were to decide or assume there was some sort of immunity forffial acts that there was insufficient -- was sufficient privatac meant for the trial -- for the case to go back into ial immediately. i want to know if you agreor disagree about the characterization of these acts as private. e commissioners let that spread to a private attorney and was willing to spread rumors about election results. >> it sounds private. >>e conspired with another private attorney that had th false allegation to support a challenge. >> that also sounds right. >> three private act through attorneys and a political consulta hp implement a plan to submit fraudulent electors to obstruct the certification results.

>> i believe that's private. >> so those acts youou not dispute, those were private and you wouldn't raise a crank -- raise a claim eyere official? >> but we wod y is officials things like being with the -- meeting with the department of justice to debete about who will be the acting internal -- attorney general of united states, mparing cadets committed getting to the public or t >> thank you. >> thank you, counsel at is the consequence in terms of going forward with your acknowledgment tose are private acts as opposed to official acts? >> if you look at the indictment here, there's a bunch of acts thatrelearly official. there may be allegations that mostly relate to what the government has describeds private aim or end and the court should address its opuremand for a brewster like determination like what's official and what's private. the official stuff has to be expunged from the indictment and there has ba determination of what's official to stage a

determination. >> if you expunge the official part from the indictment, that's ke one legged stool. giving somebody money is n bribery unless you get something in exchange. if what you get in exchange the -- is to become the investor of a -- the ambassador of a country, that is official the appointment it'wiin the president's prerogative. the unofficial part is i will get a million lls for it. if you say you have to expunge the official part, h ds that go forward? >> this rtular indictment, we don't believe it would be able to go forward. if y lk at the government's brief in his case divides the indictment into things other than the electors allegations. th haven't disputed it if they are official acts but eyay we tied together by characterizing iasone in the allegations the court just referred to by an improper

privataiwere end that just - or private end and that just runs at loggerheads. the improper motivation is what you look at. >> justice thomas? >> in assessing the official acts of prident, do you diffenate between president ti and the president acting as a candidate? >> yes, we do. we don't dispute the blazing -- the blasingame objective of that. >>n is litigation, did you challenge the appointment of special counsel? >> not directly but we have done so like in the florida case and we agree witthanalysis provided by attorney general meese and casey and it points to an important issue.

one of their arguments is that we should have the assumption of regularity. that runs into the reality we have here an extraorna prosecutor early dish -- prosecutorial power exercised and confirmed by the senate at any time we agree with that position.we . we haven't raised it yet in this case when it went up on appeal. >> justice alito? >> when you say that the official action be expund om the indictment, that in itself would not achieve much unls idence of those ofci acts were precluded at trial. tt what you are saying, that prosecution should not be rmitted at trial to prove the official acts as part of the conspiracies that are alleged? >> absolutely and that's the clear implications of brewster and johnson. >> thank you. >> i'm a little bit confused by that.

guest if you have a sche tdefraud or a scheme to accept bribery, there is evidence from which you cainr that screen -- that scheme and one is the pointment actually happened. it's an official act. u wouldn't expunge that as evidence. you ulinstruct the jury that there is no viability for the actual appointment. the liability is for accti the bribe. similarly here, i don't think

the indictment is charging that the obstruction cued solely because of conversations with the justice departme. they are saying you look at all of the pva acts and you look in the context of some of the public acts d u can infer the intent, the private intent from tm. i'm not sure that i understand why your problems couldn't be takeca of at trial with an inruction if we believe, if the court were to find and i'm not sure how they could but if it were to find that some public acts could not be thbas of criminal liability. >> the best thini n say to that and i think this ties into the chief justice's question about a one legged stool. rooster and hnn in -- brewster and johnson in subsequent cases essentially y at that this is a one legged stool problem. some of the prosecutions can proceed in that e plication of official immunity which is dictated in the constuon by the executive vesting clause. >> justice kagan? >> to continue on in justice barrett's vein and ask you about some othallegations of the indictment and whether they are official as re not in your view the defendant signed a verification affirming full

selection of fraud allegations made on his behalf on a lawsuit filed in his name against the georgia governor. >> i don't think we've disputed that. that is unofficial. >> same for the defendant calling the chairwoman of the republican national committee asked her to gather electors and targeted states falsely represented that such ecrs votes would be used only of ongoing litigation and one of the states changed the results of the defendantfar? >> we have taken the position that that's official. >> why would that be official? >> it's based on the historical example of president grant and it's something that was don pursuant to the exercise of the core recommendation clause power. >> couldn't he have taken this action just in the status of a candidate? >> the fact that he could have done so doesn't demonstrate that he did do . based on the allegations, it's

clear d not that this was done in an official capacity. >> the defendant asked the arizona house speaker to call the legislature into sessiono hold a hearing based on their claims of election fraud. >> absolutely, and official act for president to communicate with state officials attempting to defend the integrity of a federal election and communicate with state officialanurge them to view what he views as their job under state laanfederal law. that's an official act. >> attempting to defend the integrity of the election is the defense. the allegation is that he was attempting to ovthw an election. >> exactly right and neither allegation sulmake a differen ato whether he's -- it's immune. that's extremely strong with this court. >> does it strike you as odd that your understanding of immunity goes way bendhat olc has ever claimed for a former president?

>> the opinions here are strong supporting ubeuse any time a congressional statute got near touching the president's prerogatives, they said we will interpret the statute narrowly to avoid it. >> that's a different question. what olc has always said that sitting presidents get immunity but foerresident's? no. there might be a different argument made about whether a statute orheer a statute is applied to a particular conduct is properly available against the president. but that's a very different argument than the immunity claim that you are making here. olc has definitively not supported this. >> i don't know if i would put it that y. i don't recall them addressing it but there is the language of cas like marbury and statements made by benjamin franklin at the constitial convention, statements of george

washington talkingbo the massive risk of strife and how that could desoyhe government. that's what we rely on principally. i cite the olc opionbecause if there's any statute at might impact on the president's prerogatives, they interpreted to avoid that. >> if a president sells nuclear secrets to a foreign adversary, is that immune? >> that soundsimar to the bribery example and likely not immune. if it is structured as an official act, you would have to be impeached and convicted first. >> what does it mean if it structured as anffial act? >> i don't know whether that would be an offici a. you'd have to apply a different analysis. >> how about if a president orders theilary to stage a coup?

>>s the chief justice pointed out earlier, there is a whe series of guidelines against that. ucmj prohibits the ay om following a plane fully unlawful act. if one adopts the fitzgerald test, that might be impeached d nvicted before he is criminally prosecuted. >> well, he is gone. let's sayhis president who ordered the military to stage a coup, is no longer president and he couldn't be impeached. he ordered the military to stage a coup and you are saying that's an official act. th's immune. >> i think it would dependn the circumstances whether it was an official act. >> what does that mean dend on the circumstances? he was the president, he is the commander-in-chief. he talks to his generals all the timende told the generals i

don't feel like leaving office d want to stage a coup. is that immune? >> if it's an official act, there needs to be impeacen and conviction before and -- before hand because the framers knew the risk. >> is it in official acts? is it an officl t? >> the way you described that hythetical, it could well be but i just don't know. it's a fact specific contacts. >> the answer sounds to me it's an official act but it sounds bad. >> it certainly sounds very bad and that's why the framers have a whole seri ostructural checks that have successfully for the last 240 years prent that very kind of extreme hypothetical. that is the wisdom of the framers. what thevied as the risk that needed to be guarded against was not the notion the president might escaperinal prosecution for something very unlikely. ey view it much more likely

and describe -- and destructive to the public the risk of -- >> the framers d n put an immunity clause into the constitution. they knew how to. they knew how to give legislative muty. they dn't provide an to the president. not so surprising, they were reacting against a monarch who claims to be above theaw wasn't the whole point that the president was not a monarch on the president was not supposed to be abe e law? >> they did put in immunity clause, the executive action close --lae which set forth in broad language marbury ait madison. ey also discussed and considered what would be the checks on the presidency and they did not say he had criminal prosecution at the constitutional cveion. benjamin frankn id that was not an option.

everybody cried t at that was not constitutional. it is very clear on that in the second volume. >> thank you >> justice gorsuch? >> returning to the chief jui's hypothetical about the ambassador sale in bribery. congress has a statute that names the president and says he can be criminally prosecuted f bribery presumably after he aves office. outside the core areas the justice kavanah s talking about, when congress speaks clearly, couldn't a statute like that, couldn't congress provide a stutlike that that would allow all manner of evidence to come in to prove the case? >> ourosion is that would have to be an unofficial a, purely private conduct for the prosecution to gfoard. >> but outside the core areas of ecutive 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 ul come in. >> the strongest possible cases what you described describe as the core executive powers. the unreried bowl powers. this doesn't turn on hoceral it is of a legislative act is. it's an unofficial act which appls the outer perimeter of the fitzgerald. >> what would happen if presidents we der fear that their successors would criminally prosecute them for their acts in office, whether ey are engaged in drone strikes, you know all e hypotheticals. it seems like one of the incentives that mit created is for presidents to try to pardonheelves. do you have any thoughts about that? >> i didn't think about it until

yoasd it. that might be created. >> we've never answered whether president can do that. happily, it's never been presented to us. >> if that remains in place, that will like rain the case. as fitzgerald weully emphasized is the real concern being bold and fearless action. the president going to have to make a controversial decision where his political opponents will come after him th mute he leaves office? will that unduly deter, will th dampen the ardor of that president tdot our constitutional structure demands of him or her which is bold and fearless action in the face of controversy. >> pha if he feels he has to, he will pardon himself every four years now. >> as the court pointed out, that wouldn't provide security because the legality of that is something that's never been addressed. >> one of the checks and balances in addition to impeachment that you discussed

is subordinate liability. you don'coest that everybody following an unlawful order can can be immediately prosecuted, do you? if the prede gives an unlawful order, call in th troops in the examples we've heard, every subordina fes criminal prosecuti, n't they? >> that is whaitas said at the constuonal convention. theyou have to be a statute that would cover for thetoe prosecuted. >> we've got lots of statutes. the criminal law books are reete. is that one check that's available? >> absoluty. 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, the franklin clear

statement re ght be employed and you might nobeble to go after that president. i don'thk congress says we can go after the president but we can criminalize the way the president talks to congress and weilput in a criminal statue that says if you provide false inforti to congress, in carrying out the esident recommendation powers, you can be prosecuted. that wlde a difficult question. the fundamental point of drawi that distinction is an excellent distinction. >> to follow up on the olc opinion question, they articulate a clear statement rule as to this court'ca for covering official acts. none of the statutes cited here have a clear statement covering the president, therefore meaning the president cannot be charged

for any official acts under the statutes. >> that's absolutely correct. >> that's separate from what's offici vsus what's personal. for the bucket that is official, there is no clear statement period? >> th's right. as to private conduct, we n't think the clear statement rule would be invoked. these statesn the indictment are far afield to criminalize in clear terms the president's official acts. >> just to clarify this, the president's notbo the law, the president is not a king. e unders thought that. in response to tt,he president is subject to prosecution for all peon acts just like every other american. e estion is asked taken in her official capacity. >> there would be a whole series

of structural changes in addition to that wish to terror -- which deter and have successfully deterred presidential malfeasance for 200 yes. >> on the source of immunity, do -- it is not expliciinhe constitution but executive privilege is not explicit in the constitution yet in united states versus nixon, the court unanimously said the article to executive power in the constituonncompassed executive privilege in the same principle presumably would apply to executive immunity being the -- being encompassed in th executive power is historically unrsod. >> that's correct and there's a telling passage where this court talked about there is a letter from james madison to thomas jefferson at theimof the founding where madison said they did not expressly take away removal power. the congress understood it was left in play. if the original understanding is that the clause broad enou, has to be taken away which is

the opposite of the presumption they are advanci he. >> lastly, i think you've acknowledged ireonse to other questions that some of the acts in the diment are private. your view is that some are official. is it your position that that an anysis of which should be undertaken in the first instance by the d.c. circuit judge the district court? most likely a district court under the logic of anderson. >> thank you. >>ustice barrett? >> you've argued that the impeacenclause suggests or acquires impeachment to be a gateway to criminal prosecution, right? >> i think that's the plain meaning of the second phrase in the clause. >> there are many other people who are subject to impeachment including the nine sitti o this bench. i don't think anyo h ever suggested that impeachment would have to be the gateway to criminalrocution for any of the many other officers subject to impeachment. why is the president different when the impeachment clause

doesn't say so? >> someone how important has -- someone very important s madehepposite suggestion. the solicitor general borg dashboard reviewed the historical materials of the sequence is mandatory only as to the president. that is the doj view of the impeachment judgmentlae which is exactly our position. the sequence is mandatory only for the president. the criminal prosecution of a president prior to impeachment contradicts the plain language of the conition and hundreds oyes of history. doj admits the framers intent. we think that practice should not be extended in this context. >> what if criminal intent is -- criminal conduct is not discovered until after the president is out of office? so there was no oppouny for impeachment? >> the framers assedhe risk

of under enforcement by constructing these checks. this way we do not lose liberty. >> the special counsel makes a point which is pretty compelling. you admit that if the president were successfully in peace, he -- impeached, he could be criminally prosecuted after impeachment? >> assuming the prosecution was for the same conduct of which he was convicted. >> granted. you also say these criminal statutes, unless they explicitly enter the psident, don't apply to him. how can you say he would be subject to prosecution after impeachment while at the same time saying he is exempt from these criminal statutes? >> there are statutes that they can -- >> a few. two or three. >> they haven't done a comprehensive review. der franklin, it's not a magic word requirent

more fundamentally, they can see there are statutes that exis ch impeachment can occur as a result of private conduct. the impeachment judgment clause, it does significant work by authorizing the subsequent prosecution of a presiden what the framers were discussing in the constitutional convention wacoerns about private conduct. >> pick up justice kagan's example of a president who orders a coup, let's age he is impeached and convicted for ordering that coup and le's accept for the sake of argument your position athat was official conduct. you are saying he couldn't be proud -- could not be prosecuted for that even after conviction d impeachment proceedings? if there is not a statute at expressly referenced the president and made it criminal for the president? >> there would have to be a statute that mada ear statement that congress has to regulate t psident's

conduct. >> thank you. >> justice jackson? >> now understand better your position in your discussions with justice kavanaugh. it became clear yoarsaying that for the private acts of a president, theres immunity but for the official acts of the president there is immunity. is that your position? >> i agree with that. >> one thing that occurs to me is that this sort of difficult line drawing problem war having with these hypotheticals is it a private actor republic -- act or a public act? it is being necessitated by that assumption. oicial acts did not get absolute immunity, it wouldn't matter, we wouldn't have to identify which are private and which are public, correct? >> that is the approach of the d.c. circuit judge there is no deteinion -- >> to the extent we are worried about how do we figure out whether it's private

or public on the we have to understande e only doing that because of an underlying assumption that the public acts get muty. let me explore that assumption. why is it as a matter of theory and i am hoping you can zoom way out here,hat the president would not required to follow the law when he is peorng his official acts? everyo ee, there are lots of folks who have very high-powered jo to make a lot of consequential decisions and they do so against a backdrop of potential criminal psetion if they should break the law in that capacity. we underanand we know that the president of the united states has the best lawyers in e world. when he is making a decisi, can consult with pretty much anybody as to whether or not this thing is crimalr not. why would he a situation in

which we would say that the presidt ould be making official acts without any responsibility for following the law? >> respectfully disagree with that characterization. the presidt absolutely required to follow the law in his official acts but the remedy for that is the question. could he be subject personal vulnerability and being sent to prison for a bad decision he made in fi? >> other people who have consequential jobs and are required to follow the law make those deteinions against the backdrop of that same kind of risk. what is it about the president? i've heard you sayt's because the president has bable to act boldly and make consequential decisions. sure, but there are lots of people who have to make life-and-death disns and yet they have to follow the law. if they don't, they could be

sent to prison. >> from fitzgerald, that is the inference or reasoning this court rejected. >> fitzgerald was a civil situioin which the president actually was in a different position than other people. because of the nature of his job, the high-profile tu and the fact that he touches so many different things. when you talk abt ivate civil liability come anybody on the street consume m. we can see that the present was sort of different anhe ordinary person if you say he should be imne from civil liability. when we are talking of criminal liability, i don't understand how the president stands in any different position with respect to the need to follow the law in doing his job than anyone else? >> he is required to follow the law. >> but he's not if there is no threat of criminal prosecution. what prevents the president from st doing whatever he wants? >> allhetructural checks identified in fitzgera.

>> public oversight, there is a long series. fitzgerald addressed this inhe civil context. >> i'm not sure that is much of a backstop. i guess what i'm more worried out is you seem to worry -- be worried about the presiden being chill. i think we would have a significant opposite problem if the president was not chle if someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority could go into office owg that there would be no potential penalty for committing crimes, i'm trying to understand what the disincti ifr turning the oval office into the seat of criminal activity in this untry. >> i don't know if there is any allegation oth case. what georgwaington said -- what benjamin franklin said is we have use the prosecution

about chief executive that everyone cried t and george washington said we are worried about factual strife. -- factional strife. no. let me put this worry on the table. if the potential forrinal liability is taken off the table, wouldn't ere be a gnicant risk that future presidents woulde boldened to commit crimesitabandon while they are in office? right now, the fact that we are havi ts debate because esents might be prosecuted, esidents from the beginning of time he derstood that's a possibility. that might be what has kept this office from turning into the kind of crime center i'm envisioning. once we say no criminal liabilit m president. you can do whatever you want. i'm worried we would have a worse obm than the problem of the president feeling constrained to follow the law while he's oice. >> i respectfully disagree with that.

the regime you described is the regime we have orated on under 234 years. there has not been an expectation -- >> let me ask you another question. let a about the clear statement line of questioning. i di't see you argue that bew. unrstand you have that in your briefs but did you argue bere the d.c. circuit judge about a clear statement with respect to statutes? >> yes, in our separelfiled motion. >> that's not the question in this case. the question in this case comes out of your motion for immunity. to bring in an argument that you didn't raise below, it seems you forfeited it. >> i believe it's fairly included within e estion presented. >> why? >> the court expanded the question. >> but not a different statutory interpreti. that goes to constitutional avoidance, statutory

interpretation in u.s. for muty which is a different thing. >> i think it's rylose logically. to what extent does it exist in the argument is immunity exists to thextt that it grazes a great -- it raises a great constitutional question. >> that's totally circular. u used that argument to avoid constitutional questions. you are asking us a constitutional question here so it does't even make sense to talk about clear statements and rule, the way it has come up in the context of an immunity question. let me ask you this about it. one more questio what ithe argument that the president of the united states who youay is bound by law is not on notice, that he has to do

his job consistent with the law? to the extent the clear statement rule comes in, it's about e rson not being on notice. i n't understand why congress in every criminal statute wod have to say and the president is included. i thought that was the background understandi tt they are enacting a generally applicable criminastdard which applies to the president like everyone else. what is the eastatement that would be made in this context? >> under franklin, congress has to speak clearly before it interferes with the presidt's powers. weave an indictment here that seeks to criminalize objective context that falls within the heartland of corutive authority. >> thank you. >> thank you, counsel. mr. drem >> mr. chief justice, may i please record? this courtas never recognized absolute criminal immunity for any publi official. petitioner claims that a former president haprinent criminal

-- permanent criminal immuni for its official act unss he was first impeached and convicted. his novel theory wou iunize former president's for criminal liability for bribery, treason, sedition, murder and conspiring to use a crowd to overturn the results of an eleconnd perpetuate himself in power. such presidential immutyas no foundation in the constitution. the framers kn a too well the dangers of a king who could do no wrong. they devised a system. to check abuses ofow, especially the use of official power for private gain. here the executive brancis enforcing congressional statutes and seekg countability for petiers' alleged misuse of official power to subvert democracy. that is a compelling public interest. in response, petitioner raises

concerns aboutottial abuses. established legal safeguards prove yers of protections with the article three courts oving the ultimate check. the existing system is a carefully balanced framework. it protects the presidt,ut not at the high nstutional cost of blanket criminal immunity that haseethe understanding of every president from the framing through watergate and up to tay this court should preserve it. i welcome the court's questions. does the president have immunity or are you saying that there is no presidential immunity evefoofficial acts? >> yes, justice thomas, but it ismptant to put in perspective the position that we e fering the court today. the president as the hd the

article to branch caasrt as applied article two objections to criminal laws that interfere with an clive power possessed by the president or thatrent the president from accomplishing his constitutional he assigned funcon that is the constitutional doctrine thacuently governs the separation of powers. what petitioner aing for is a broad, blaetmmunity that would protect the president, a formerredent, from any criminal exposure absent impeachment and conviction, which has never happen iour history, and we submit that is not necessary in order to su that the president can perform all of the impta tasks that the constitution reposes in him. >> in not so distant past, certain presidents have engad in various activities, operations, like operation

mongoose when i was a teenager, and yet there were no prosecio. why? if what you are saying is right, if it seems that that wod ve been right for criminal prosecution. >> justice thos, think this is a central question. the reason why there have not been prior criminal prosecutions is that there were not crimes. i want to explain why there are ye of safeguards that assure that former presidents do not have to lightly assume crina liability for any of their official acts. at the outset, there is a statutory nsuction principle that is applicableer it arises when there is a seouconstitutional question about apyi a criminal statute to the president's act.

it is not and i'm sure we will scuss this that no statute can apply to the president in his official capacity abse a designation of the president in it. but eris a principle that if there is a serious constitutionalueion, courts will strive to construe the statute so it does not apply to the president. in addition to that, the president i think has been mentioned earlier has access to adce from the attorney general and it would be a due process problem to prosecute aredent who receives advice from the attorney general that his actions were lawful abse t kind of collusion or conspiracy that is self represented a criminal violation, which i d't really see as being a realistic option. and if i could say one more thing because you rais t question about potential overseas taking of life and the office of legal counsel has addressed th qte specifically.

there is a background principle criminal law called the public autri exception to liability and it is read into feralaw unless congress tas specific action to ousted, which it never has done as far as i am aware, and in a case in which the president sought to engagen erseas activity that would result in the taking of life, it did not say the federal murder statute doesn't apply. that would be the crux of friend's argument. instead, olc went through an extensive analisn why the public authority defense would prevented fr bng considered a violation of law to go after a terrorist for example. >> the court of appeals belo said "a former president can be prosecuted for his official acts because the fact of the prosecution meanth the

former psint has allegedly acted in defiance of the laws." do you agree with that statement? >> i think it sounds tall locally true, but i want to underscore that the obligati of a president is to take care that the laws arfahfully executed. >> i think it sounds tall illogically true as well. as i read it, it says simply a former president can be osuted because he is being prosecuted. >> i would not suggesthathat is either the proper approach in this case were certainly not the governn's approach. a prosecution doesf urse invoke federal criminal law. the allegationha to be presented to a grand jury. >> srt after that statement in the court, that is what they said, but there is no reasono worry because the prosecutor

will act in good faith andhe is no reason to worry because the grand jury will have returned thendtment. you know how easits in many cases for a prosecutor to get a grand jury to bring in indictment and reliance on the good faith of the prosecutor may t be enough in some cases. i'm not suggesting here. if those a t only protections and it is topological and that is no longer your poti, you are not defending that position, why shouldn't we send it back to the court of appeals or issue an opinion making cle tt that is the law? >> i am defending the court of appeals judgment and i do think there are laresafeguards the court can take into account that wi aliorate concerns about unduly chilling presidential conduct. that concerns us. are not endorsing a regime

that we think would exse former presidents to criminal prosecutions in bad faith, for political animus, tht adequate evidence. a lically driven prosecution would violate the constitution underweight versus united states. it is not something th the arsenal of prosecutors to do. prosecutors take an oath, e attorney general takes an oath. i don't want to erate your honor's concern with potentially relying fully gd faith, but that is an ingredient. and th t 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 ago. >> what concerns me is the court of appeals did not get into a focused nseration of what ac ware talking about or what documents we are talking out because of its adoption of

what you termed and i agreed quite correctly is a tautological statement. because the fact of prosecution was enough to take away any officialmmity, the factor -- the fact of prosecutio ty had no need to look at what courts normally look at when y talk aboutherivilege or immunity question. >> i think i wouldakissue mr. chief justice with the idea of tinaway immunity. there is no immunity that is in e constitution unless this court creates it today. there is nteual immunity. we do not submit that is the end of the sry the united states versus nixon was not a textually secase neither was nixon versus fitzgerald. we endorsed both of those holdings. what is important is that no public official has had absolute criminal immunity th mfriend speaks of, even with respect to the speech or debate cus it is narrow and is focused on legislative acts, inot focused on everything a

congressman doesanit responds to a specific historical circumstance that involved the two other branches potentially harassing gislators and preventing them from doing their jobs. that is y ended up in the constitution. nothing kehat ended up in the constitution for the president and that ibeuse one of the chief cces of the framers was the risk of presidential misconduct. they labored over this. theydoed an impeachment structure that separated removal omffice as a political remedy from criminal prosecutio this departed from the british model. thbrish model was you get impeached and criminally prosecuted andoncted in the same proceeding. e amers did not want that. they wanted a political remedy in case a president was engaging in conduct that daered the nation. he could be removed. he can't be prosecuted as a

sitting president. that has been a long-standing justice dertment position. >> you dispute propositions that a former president has some form of immunity, but as i understand your argument, you do recognize that a former president has a rm of special protection, namely that statutes thaar applicable to everodmust be interpreted differently under some circumstances when applied to a former president. isn't that true? >> it is true because of the general principle that courts nsue statutes to avoid serious constitutional questions and that has been the long-standing prti of the office of legal counsel. >> all right, this is more than just a quarrel about terminology. whether it is immunity or special protection because it

involves this difference which you are well awaref. if it is just a form of special protti, in other words statutes wilbenterpreted differently, then that is something that has to be litigad trial. the former president can make a moon to dismiss and may cite opinions and the districcot say, that's fine, i'm not bound by olc and i interpret it differently, so t's go to trial. and there hatoe a trial and that may involve great expense and it may take up a lot of time and during the trial the forme president may be unable to enge in other activities. then the outcome is peent on the jury, the instructions to the jury and how the jury returns veict.

so the protection is greatly diluted if you -- if it takes thform that you have proposed. why is that better? >> it is better because it is more balanced. the blanket immunity that petitioner is gug for just means that a criminal prosecutn off the table unless he says that impeachment and conviction have occurred. osare political remedies that are extremely difficulto achieve in a case where misconduct occurs clostohe end of a president's term. congress is unlikely to crank up the machinery to do it. if the impeachme tal has to occur after the president has left office, there is an open question about whether that can happen at all. >>oure arguing against the most far-reaching aspects of t arment. and let me turn then to why -- >> do you agree that there are

some aspects of article two presidential power that are exclusive and that congress cannot regulate and therefore cannot criminalize? >> absolutely. >> for other official acts the president may take that e t within that exclusive power, assume for the sake ofrgent 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 ngss has to speak clearly to criminalize official acts of the president by a specific reference. that seems to be with the olc opinions suggest. i know youava little bit of a disagreement with that. >> justice kavanaugh, i would like to take all othe in turn because i do not thk is court's cases speak that broadly and i don't think the office of legal counsel's opinions stand

for this broad proposition that unless the president is specifically named he is not in the state d i don't think that is necessary to afford advocate protection for the president's valid article two functions. >> sorry to interrupt t want to get this out and you can incorporate it. you set unless the ia serious constitutional question. it is a serious constitutional question whether stute 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 that a serious constituon question exists

on applying any criminal prosecution to the president. >> t pblem is the vagueness that can be used against a lot of presidential activities historically with a creative prosut who wants to go after a president. >> let me try to -- >> that is what we are talking abouhiorically is the risk and going forward, the risk. you can takellf that. >> i tend to put the question about the risk is very serious. it is a question that this court has to evaluate. for the exute branch, our view is that there is a balanced protection that better serves the interests of the constitution that incorporates both accountabilitan protectionorhe president. and i want to go through the protectis at do exist. but rhs it is worth returning at the outset to the statutory construction question atou raised. the office of legal counsel has said, it does not name the president section 201 does not name the president. >> assume that is personal.

that is what brewster said. >> tbery statute in 607 says the president. there is that. frome. let me just backup though a second of what was a quick exchange with justice kavanaugh i want to make sure i understand. did you agree that there are some core functions of the executive th cgress cannot criminalize? y. >> you can call it immunity or they can't do it, but what is the difference? >> we call it an as applied article to challenge. >> can we call it immunity for shorthand'sake? i think we are narrowing the ground of dispute. it seems to me there is some ar y concede that there are fial acts that congress cannot criminalize and now we are talking about thsce. >> i don't think i suggest, i

i think it is a significant gap between any official act and the small core of exclusive official acts. >> i got that, but i want to explore that. for exampl l's say a pridt leads a mostly peaceful protest sit in in front of congress because he objec to a piece of legislation that is going through. and it in fact delays the proceedinginongress. now, uer512 c2, that might be correctly impeding an -- corruptly impeding an fial proceeding. ishacore and therefore immunized or whater phemism you want to use thhat? is that not core and therefore osutable? without a clear statement that applies to the preside. >> it is not core. the core kinds of activities the court has acknowledged are the thgs that i would run through the youngstown analysis. it is a pretty small set, but

things like the pardon power, the power to recognize four nations, the pow tveto -- foreign nations, the power to veto legislation, the power to make appointments. ese are things the constitution specifically allocates to the president. >> so a president then could b osecuted for the conduct i described? >> probably not but i want to explain the framorof why i don't think that that would be prosecution that would be valid. first, i think you need to run thugall of the normal categories of analysis. you may well default to ds not apply. >> that s question. you said it fell outside that core we will call it immunity for simplicity sake. >> yes, i understand.

but there is a separate category. >> why couldn't he be prosecuted for leina civil rights protest in front of the capital that delays a vote on a piece of important legislation? >> i think what you need tdo is run through all of the very president specific lays analysis. one is whether the stu would be construed not to apply to his conduct even if it is not part of that small ref things congress can't regulate at all. ift operates to prevent the presidt from fulfilling his -- >> he could have given speeches against it. he did. but he did something me d it impeded and sought to influence an official proceeding. >> we are arng with the layersf otection and we are now down through whether the stutwould be construed to apply to him. th there is the question of whether he has the state of mind.

>> let's say he does. nobody knows what corrupt intent means. we have been around that tree. maybe it means he knows he is doing wrong, what the government told us. he knows he shouldn't be blocking a congressman. >> let me get to the next layer which is that the presintoes have access to the attorney general to provide legal advice, and rularly gets legal advice from t aorney general about the lawful scope of the president's activities. we could go down two tracks here. one is that the atrn general advises him that as an incident of his articlewouthority and in carrying out the futis of the presidency, he can lawfully participate in that prott. it is kind of a first enent analog to the president's official power wch the court is exploring in other cases. alternatively, the attorney general could advise him, there was nothing in the language of

the statute that carves you out, i don't see a serious constitutional question and it and i would advise youoto violate any criminal law. >> and then he can be prosecuted? >> no. >> if he gets a negative opinion fromhettorney general, he still couldn't? >> i would assume most presidents -- >> if he gets one does it anyway, he could be prosecuted? >> if we are down at that level en think we are asking is whether the president is subject to the criminal law and our answer is yes, he is subject to the criminal law. >> can we go back to the bribery statute? i understand that the only thing covered by that is the president is barred from solicitinor receiving funds in anyooor building. >> that's rrt. >> official building. it is a very limited convention. so, inderstand this, there are two limited provisions mentioning the president that arincluded. there is a whole number of

ovisions that exclude the president, many more that exclude the president, correct? >> it is a small numbeonoth sides. >> justice barre me the point that if we say a president can't be included in a criminal law unless explicitly named, thenhawould bar the senate frommpching him for high crimes or misdemeanors, because that means that he is not subject to the law at all. correc that is a taolical. >> i think what justice barrett was saying and we would agree with that is that under my ie's position after impeachment he could be prosecuted, but under his statutory construction approach erwould be nothing to >> exactly, that is the point is if he is not cover bthe criminal law, he cannot be impeachefoviolating it. all right. could we go further on this clear statement rule? the situations and you mentioned

it earlier in which we have looked to see if the president is covered is coexal, correct? >> correct. >> what are the factors we generally look at? i'm thinngbout whether the apa covers the president. >> corre. >> whaweid was analyze what powers were being given to i the lawsuit and etc. look at words, structure, separation of powers iue relating to our case law that said you can't direct a president to danhing and this would have been a subterfuge for that. >> all corct >> so i don't know why -- how they wldashion a clear statement rule that would say when a loss says any pso -- when the law says any persons n't accept a bribe, that that permits the president to do it. >> so, i agree, justice sotomayor, that the way that

this court has interpreted statutes that do carve out the president was very context specific. the franklin case basically involved a holding thawere highly unlikely to say that the president is an agcy something the government said would be a pulr understainof agency, when the effective it would be that we wldeview the president's decisions under statutes for usof discretion, which is a very extraordinary thing to , even going back to marbury. marbury says discretionary acts of the president or not the kind -- are not the kind of thing the court reviews. >> could i go back to your brief ? going back to what some of my colleagues have asked you, tre appears to be some narrowing inciples that the president is subject to all criminal laws in all situations. do you agree that this affects

core powers that he would not be subjectony laws that attempteto limit those core powers? >> that's correct. >> you are defining reowers as those specified by article two. >> that is potentially correct, yes. >> and the only words in the constitution of that -- that have to do with the president in law is that he shall take care that the lobby faithfully exuted, correct? >> that's right. >> hard to imagine that a esident who breaks the law is faithfully executing the law, correct? >> he has to e all of the laws. >> presidents have to make a lot of toughions about enforcing the law and they have to make decisions about questions that are unsettled and they have to make decisions based on thenfmation that is available. did i understand youo y, well, if he makes a mistake, he makes a mistake, he is subject

to criminal la jt like anybody else? >> he is in a special position for a number of reasons. one is that he has access to legal advice about everything he does. he iunr a constitutional obligation where he is supposed to be faithful to the laws and the constiti and making a mistake is not what lands you in a criminal procuon. erhas been some talk about the statutes issued in this case. i think they are fairly 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 don't want to dispute that particular application of that 371 conspiracy to defraud the united states, but would you not agree that that is puliarly open-ended statutory

prohibition? that fraud under that provision under like most other fraud provisions doesn't require any impairment of a property interest? >> it is designed to protect the functions of the united states government andt difficult to think of a more critical function than the certicion of who won the election. >> i'm not discussing the particular facts of this case t 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 governmentalunion by deceptn d it has to be done. these are not the kinds of activities that i think any of us would think a preside nds to engage in in order to fulfill his article two duties and in

particular a case likehione. i want to pick up something the court said earlier about a public official acting to achieve publicnd ana blic 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 pridtial election. it seems likely that the framers designedheonstitution that way because at the time of the founding presidents had no two rmimit, they could run again and again. th were expected potentially to want to do that. the potential for self-iert would explain why the states conduct the elections, they send electors to certify who won those elections and to provide votes, and then congress in an extrrdary joint session rties the vote. e president doesn't have an official role in that proceeding.

it is difficult for me to understand how there could be a serious constitution qstion about saying you can't use fraud to defeat that function,ou can't obstructed through deception, you can't deprive millio ovoters of their right to have their vote counted for e ndidates who they chose. >> thank you, c. justice thomas? justice alito? >> could we riefly review the layers of protection you think ? i'm going to start with what the d.c. circuit said. the first layer of proctn is that attorneys general and other justice department attorneys can be trusted to act a professional and ethical manner. >> yes. >> how robust is that protection? the vast majority of attorneys generaanjustice department attorns d we both served in the justice department for a long time are honorable people anthey take their

professional, ethical responsibilities serious, t there have been exceptions both among attorneys genel d federal prosecutors. >> there have been rare exceptions, justice alito, but when we are talking about laye oprotection, i do think this is the starting point and if the crthave concerns about the robustness of it, i would suggest lookinat the charges in the case. >> i'm going to talk about th in the abstract because what is before us does involve this particular case, which is immensely important, but whev we decide will apply to all future presidents. as for attorne geral, two have been convicted of criminal fees in office. others, a mitchell palmer comes to mind, who is widely regarded as having abused the power of his office. would you agree with that? >> i would, but they are officials in a long line of

attorneys generawhdid not and in departments of justice affed by multiple people would do adhere to their office. justice alito, the point i wanted to make about this case es go to the general proposition. thalgations about the misuse of the department of justice to perpetuate election frd ow exactly how the department of justice functions in the way that it is supposed to. petions alleged to have tried to get the department of justice to sd audulent letters to the states to get th treverse electoral results. >> i understand that. but as i said, this case will have effects that goar beyond this particular prosecution. so moving on to the second level of protection that the d.c. circuits cited. federal grand juries wilshld former presidents from unwarranted indictments. w much protection is that? >> it affords two levels of

protection. one is the probable cause finding requires evidence. some of the arabout grndss prosecutions aren't supported by evidence and they are not going to get out of the stting gate. >> there is the old thought about indicting a ham sawi. you had a lot of experience in the justice pament. you come across a lot of cases where the u.s. attorneor another federal prosecutor really wanted to indict a case in the grand jury refused to do so? >> the a such cases. yes. >> once and a while, there is an eclipse too. [laughter] >> for theosreasons prosecutors have no reason to bring a case to a granju and secure an indictment where they don't ve evidence to prove guilt under reasonable doubt. it is selfefting. >> the third is that they enjoy all the protections afrd all criminal defendants. that may be true at the end of thdabut a lot can happen

between the time when an indictment is returned and the mehen the former president nally gets vindication, perhaps on appeal. isn't that correct >> it is correct, but i think we should consider the history of this country. as members of the court have observed, ibaked into the cotition that any president knows that they are exposed to potential criminal prosecuti. it is common ground that all former presidents have known that they could be indicted and convicted. and watergatcented that understanding. thwargate smoking gun case involved president nixon and h. haldeman talking about and then deciding to use theiao give a bogus story to the fbi to shut down a criminal investigation.

>> mr.auand others have identified events in the past were presidents have engaged in conduct that might havbe charged as federal crimes and you y,hat is not really true and this is page 42 of your brief. so, what about president franklin d. roosevelt decision tontern japanese americans during world war ii? couldn't that have been charged conspiracy against civil rights? >>od, yes, given this court's decision in trump v. united states in which -- trump v. hawaii in which the court said korematsu was overruled and president roosevelt made the decision with the advice of his attorney general. >> is that really true? i out there was really no threat of sabotage, as did j.

edgar hoover? >> there is a lot of historil controversy. that occurred during warmend it implicates a potential commander-in-chiefonrns, concerns about the exigencies of nationalefse that might provide an as applied article to challenge at t te. i'm not suggesting today. buthe idea that a decision that was made and was endoed by the court perhaps wrongly would support criminal prosecution under 241 which requires united states v. lanier that it had enade specific so there is notice to the president. >> we could go through other histic examples, i won't do that. let me touch brilyn a couple of other things. the relevance of advice of counsel and i wasn't clear what your answer is. if the president gets advice from the attorney general that something is lawfu ithat an

absolute defense? >> yes, thk that it is under the principle of entrapment. iss a due process doctrine that we referred to in our brief. we cited authority of this court that if an authorized government representative tells you that whatoure about to do is lawful, it would be a root violation of dueross to prosecute you for that. >> won't that give presidents incentive to be sure to pick a torney general who will reliably tell the president that its lawful to do whatever the president wants to do if there is any possibly conceivable argument in favor of it? >> i thinkheonstitutional structure protects against that risk. the pridt nominates the attorney general and the senate

provides advice and consent. the are the structural checks that have operated for 200ea 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 thauority to pardon himself, ich came up earlier in the argument, what is the answer to that question? >> i don't believe the departmentf stice has taken a position. the only authority is a member of t oice of legal counsel otthat there is no self pardon authority. the department has not addressed it further and this court had not addressed it either. >> when you addresth question before, a you speaking in your capacity solely as a member of the speci counsel's team or are you speaking on behalf of the justice department, which has special institutional responsibilities?

>> i'm speaking on behalf of the justice department representing the united states. >> don't you think we need to know the answer atea two the justice department's position on that issue iorr to decide this case? because aresident has the authority to pardon himself before leaving office and the d.c. circuit judge right that there is no immunity from prosecution, won't the prictable result be that presidents in the last coue days of office will pardon themselves from anythi ty might have been conceivably charged with commiin >> i really doubt that, it presupposes a gi we have never had except for president nixon and as alleged in the indictme he. presidents who are conscious of having engaged in wrongdoing and seeking to shield thsees. the political consequences of a president who asserted a right of self pardon that has never been recognized that seems to contradict a bedrock princip of our law that no persians

shall beheudge in their own case, those are adequate deterrents so that this kind of dystopian regime is not going to evolve. >> let me end with just a question about -- what is required for the functioni o a stable democratic society? which is something that we all want. i'm sure y wld 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 th candidate is the incumbent. >> of course. >> all right. if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not at

the president is going to be le to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not ads into a cycle that destabilizes the functioning of our country as a democracy? d 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 opposi, stice alito. there are lawful mechanisms to contest the results in an elecon and outside the record, but i think a public knowledge, petitioner and his alls led dozens of electoral challenges and in my understanding has lost all but one th w not outcome determinative in any respect. there reudges that said in order to sustain substantial claims of fraud that would ovtu an election result that is certified by a state, you

need evidence, you need proof, annone of those things were manifested. there is an appropriate way to challenge things throu t courts with evidence, if you lose, you accept theests, that has been the nation's experience in the court is well familiar wh at. >> thank you. >> justice sotomayor. >> a stable democratic socty needs the good faith of its public officia, rrect? >> absolutely. >> that good faith assum tt they will follow the law. >> correct. >> putting that aside, there is no failsafe system of government. meaning, we have jicial system that has layers and layers and layers of protection in the hopes that the innocent wi gfree. we fail routinely.

but we succeed more often an not. in the vast majority of cases, the innocent do go free. sometimes they don't and we have some postconviioremedies for that. but we stillai we have executed innocent people vi said that, justice alito went through step-by-step all the mechanisms that coul potentially fail. in the end, if it il completely it is because we have destroyed our democracy on our own, isn't it? >> it isnd think there are additional checks in the system. a separated power system was designed to limit abuses. one t ways in which abuses arlited is accountability within the criminal law, buthe ultimate check is the goodwill and faith in democracy and crimes that are alleged in this

case that are the antithesis of democracy -- >> an encoagent to believe wos at have been put into suspicion here, that no man is abe the law, either in his official or private acts. >> i think that is an assumption of the constitutn. >> justice kagan? >> i want to go through your framewk d make sure i understand it. first, on the small categoryf ings that you say have absolute protection, that they are core executive functions. what are those smallatories? >> pardon powe >> vo. >> veto. >> foreign rogtion. appointments. congress cannot say you cannot apint a federal judge who hasn't received a certain diplomorasn't achieved a certain age. there are a few other pors

>> is commander-in-chief? >> commander-in-chief is on the list, but i wanto d to my answer on that that congress has substantial authority in the national security round. it declares war, raises the army >> that may be viewed in the set ofunctions that nobody has it over. >> now in the next category where we have left the corse behind and we are in the world of official actions where you say there are various atory construction rules that might come into play. could you have characterized those as something different from saying the ate doesn't say the presentherefore it doesn't apply to the president? >> that's right.

>> i wanted to give you an pounity to say how that would look, how that analysis would look in a given case a in the course of responding to that, i'm sort of inng of something like thelcpinion, which says bribery, the president can be tried and convicted of bribery, why is at true? >> tt true because there is no serious constitutional question that the president needs eage in bribery to carry out constitutional functions. bribery is in the impeachment clause so it falls outside of anhi that could be viewed as inherent in the need of article two fction. >> do you think the premise of that olc opinion was tha bribery was simply not official or is the eme that the bribery was official and still the president could be

prosecuted for? >> i think bribery is a kind of br that illustrates the abuse of public office for prate gain that we think our things that should be nohe to be immune. the public official nn extract the bribe without the official power tofr as quid or pro. i guess the quo actually. it ia ime that can only be committed by public officials who misuse their power. it is one of the things that w most mistrusted. many of the acts charged in this indictment or that would violate criminal law involve t muse of official power for private gain. >> so if you wertoay what the line is in this category, like when it is athe statute should be understood as precluding presidential prosecutn d when it is that the statute should be understood as allowing it, what general

principles should guide? >> the general principles i think kind of emerge from looking at what the office of legal counsel has done for example, with respect to a federal statute that prohibited appointments to cords -- courts, the office of legal counsel said this infringes on the power to appoint ferajudges. it cannot be presumed that congre iended to do that because it would raise a serious constitial question. then there are categories of stutes where the president is in. like the graros lobbying statute. the olc wrote an opinion about that a isaid for the president or other public officials to go out into the world to promote their programs, th c't be what congress intended to prohibit. wh it did intend to prohibit is using federal funds to gin up an artificial grassroots campaign that gave the

appearance of emerging from the people that it was really top down. the olc sa t president and officials who carry out the presidt's mandates are subject to that statute so that is a mo nuanced one. and those are the examples tt will give you. the third is the statute that would permit prosecution for contempt of congress the olc concluded that a good faith assertioofxecutive privilege as a reason for not providing information congress wou pclude prosecution because congress cannot be deemed to have aer the separation of powers in such a mann. i think olc would have probably go oto say of congress tried to do it, it would be deemed unconstitutional. t is was a statute that did not specifically name the esident. there are only two that do that. so the entire corpusf deral criminal law including bribery offenses, sedition, murder, would all be off limits if it

were taken to the extent that some of the questions have suggested. and it does raise a serious constitutional question. if so, to what extent cabe carved out individuall and there may be some instances where the statutes here could be carved out and a particular act could be found to be protected. or does the statute across the bod such a wide range of applications, somewhat analogous toverbreadth analysis, infringe on the president's powers so we can say that? >> that set of issues seem important and may be difficult occaonly. they also seem not really before us in the wajuice jackson suggested earlier. do you think they are before us and suld clear it up, here it is? wh ee could we do?

how could we deal with this? whether or not there ith absolute immunity. >> i think the court has the discretion to reach that issue. it was n rsed in the district court and it was not raisedn e court of appeals. thanysis i would use to get there is a fusion of a couple of prciples. the court has often resolved threshold questions thatre prerequisite to an intelligent resolution of the queson presented. in a case like united states versus grubbs, the court reached out toece whether anticipatory warrants are valid under the fourth amendment before turning to the question ofheer the triggering condition for an anticipatory warrant had bin the warrant. th ione principle. and then a precedent that bears some analogy to this is vermont natural resources agency v.

ited states. the first question was wheer state agency was a persowiin the meaning of the actndhe second question was etr if the state agency was 11th amendment imni kicked in, and the court wrote an analysis of why it could reach both questions. reaching the person question did not expand jurisdiction and made sense as a matter of nstitutional avoidance to do that. there are considerations that cut against this. for overall governntquities, we are not wild about parties who raise an immunity case that can be presented to a court on appeal and then smuggling and other issues. so we would want to guide the court not to have an expansive prch to that issue. but the final thing that i would say about this is part of our

submission to this crts that the article one branch and the article two branches are aligned in believing that this prosecution aappropriate way to enforce the law. congress by making the law, the current executive by deciding to bring it. it is a building block of that submission is that congress actually did apply these imal laws to official conduct, the court may wish to exercise discretion to resolve that issue. >> i have one last set of questions which hatoo with the official unofficial line. you heard mr. u's responses to justice barrett's questions and my questions about what he thinks counts as official here and what he thinks is unofficial re. i'm wondering what you took from his responses and al h you would characterize what is official and whaisot official in this indictment. >> so, i think petitioner conceded that the e acts that are not official that are alleged in the indictment.

we agreed onllf that. i disagree with him on everything else about what he said as official and what is no ornizing fraudulent slates of electors, creating false documentation that sayi'm an elector, i have enppointed properly, i'm going to send a vote to congsshat reflects thatetioner won rather than the candidate that actually got the most votes and it was ascertained by the governor an s electors were appointed to cast votes, that is not official conduct. that is campaign conduct and i think that the d.c. circuit judge ca d draw an appropriate distinction. a rsterm president running for reelection can act incapacity of ofceeeker or officeholder. when working with private wyers and in private-public relations advising to gin up frdulent slates of elections,

that is not part of a president's job. >> there is anllation in the indictment that has to do with the revaof a justice department official. is that core protected conduct? >> we did not think that is core protteconduct. i don't think i would arterize that episode quite that way. we do agree that the department of justice allegationsera use of the presiden's official power. in many ways, we think that aggravat t nature of this offens seekg a candidate to oust thlaul winner of the election and have oneself certified with private actors is a private scheme to aceva private and read for an incumbent president u his presidential powers to try to enhance the likelihood thait 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 have fle at that point, the petitioner is alleged to have tried to pressu t department of justice to send false letters to thstes claiming there were serious election regularities d ey should investigate who they certified. none of this was true. the department of justice officials all said this was not true, we are not gngo do that. at that point, petior is alleged to threan remove the department of justice officials who are standing by their oath and replace them with another peonho would carry it out. we a n seeking to impose crin liability on the president for exercising or talking about exercising the potment and removal power. what we are seeking to impos crinal liability for is a conspiracy to use fraud to subvert the election, one means of which was to try to get the justice departme tbe

complicit. the case wldave been no different if petitioner were successf a he had actually ersed the appointment and removal power and had gone through and those fraudulent letters were sent. it would have made the scheme more dangerous, but it would not have changed the crime. >> how do we think about things like conversations with the vice president? if you say it that way, they would fall under executive privilege. but how does tt late to the question we are asking here? >> this isnef the most difficult questions for the department of justice and i want to explain why that is. if we are operating under a tzrald versus nixon lens and looking at this the way we loo at things when there is a private lawsuit filed against the president, we take a very broad view of what the oer perimeter of official presidential action is in order to be as protecte the president against private

lawsuits that as the court plned in nixon versus fitzgerald can be very deleteouto the president's conduct of business. if we were putti ts under a fitzgerald lens, we would have to answer the question, was he acngncapacity is office seeker or was he acting in the capacity as officeholder? if you run through the indictment, you cafi support for those two characterizations and the departntf justice has not yehato come to grips with how we would analyze that set of iertions. >> thank you. >> justice gorsuch? >> wanted to confirm i thought i heard that you thought tt the blasingame framework was the appropriate one. >> largely, yes. we agree with the idea of the distinction between officeholder and office seeker. we also agree that if it is objectively asable to view

the activities as those of officehold, en the fitzgerald immunity kicks in. i think we would look more at the content of the actual interaction in order to make that determination than asgame suggested on the fas of the case might be appropriate. >> can you give me an example of >> can you give me an example of what you have in mind mit appropriate? i'm trying to understandhe nuance. >> blasingame, a generally very favorabl p-government framework that we endorse. i would have thought. >> not here, because we don't think fitzgerald applies. >> i underanthat, but putting that aside, the distinction between official act and private office ske their test is you think odnough for government work? >> on this one, thdertment hasn't taken a next step since the blasingame decision, b l me offer a few thoughts that

might clarify it. the blasingame decision focused on objective contextual indications to see whether the president was acting as a campaigner, as opposed to an officeholder. i think that that decision can also be made bloing at what the president actually said. let me illustrate that wh allegation, briefly. inne of the interactions between petitioner and a state ofci, petitioner is alleged to have said, all i need you to find me 11,000 votes. and change. i think if you look at that content, 's pretty clear that petitioner is acting in the capacity as office seeker, not as president, and we would look at that content. >> ok. but the tests, but i am just focused on theeg tests. i'm not hearing any exceptions tot. >> other than the d.c. circuit

judge a's to more content consideration off-limits than i would. >> ok. and i want to understand on th core immunity or whatever word we use, it seems to me we are narrowing the ground of dispute here considerably. do we look at motis,he president's motives for his actions? i mean, foexple, he has lots of war powers, as we discussed, but he might use them in order to enhance his personal interests. his election. is that a relevant consideration when we are looking at core powers? so, i am thinking of this more as looking at the objective of the activities as opposed to the kind of subjective mivin the sense that your honor ggts. i think there is a lot of concern about saying elector --ndlectoral modem to be reelecd. every first-term president, >> --

>> every first-term pridt, 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 think you woulsa personal motivation is off limits with respect to the core powers. >> pbably, with respect to the core powers, we think there are things -- they are things that can't be regat at all. regardless of motive. >> so than any noncore powers is what we are fighting over. what role do motives play, then? one could remove an apine -- first of all, maybe ask this first. is removing an appointee, a presidential appointee, a core power or noncore power? >> here, i mighteeto differentiate between the principal officers, likeyers, that have been regdeas having a constitutional status of being removable at will from

inferior officers reongress does have some regulatory latitude to impose restrictions on removal. >> sure. let's put that aside. i understand that. >> putting that aside, pointing a principal officer is a core power. i'm not eped to say that there is no potential criminal regulation, to say you can't do it fororpt purposes to enrich yourself, for example. >> bribery, all right. but that's what i was wondering. motives come into the core power analysis are not, at the front i heard no, and now i am hearing maybe. >> i think it might be more appropriate because the dertment has not had to take a position on exactly how these core powers would be resolved as applied constitutional analysis. none is involved in this case. >> i guess i'm wondering -- and i'm not concerned about this

case smu as future ones,oo -- these noncore powers and maybe core powers were a president is acting with at -- where a president is acting with at least part personal inre in getting reelected, everything he does he wants to get reelected. ifoure allowing in motive to color that, i'm wondering w much is left of either the core noncore powers. >> i would be fine with carving that out and deeming that to be something th iintrinsic in our electol stem. we are not talking about applyi cminal law to somebody who makes an nocement that this program will be good for the united ates and somebody could come along and say, well, you really did it to get reelte leaving aside whether any event -- whether any of that violates a criminal law, let's assume that ido. i'm doubtful that it does becae don't think criminal laws generally operate on motives as opposed to objectives and purposes. >>nttion aside, intention is

a motive and a motive isn intention, leave that aside. >> putting that aside, that really to me falls in a very different category, and it is also -- >> there are some motis at 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 enin 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 tter what the president's motives we, are not going to look behind it. same thing with nixon. we sd, gosh, nixon versus fitzgerald, that is somethg courts shouldn't get engaged in because presidents have al manner of motives. and again, i'm not concerned about this case, but i am

concerned about future uses of thcrinal law to target litical 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. mae will find out sometime soon. but the dangerousness of acsing your political opponent of having bad motives, if is -- if that is enough to overcome your core powers or any other limits, reactions, thgh? >> yeah, i think yo'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 statute seeing what restrictions they do place on theredent's conduct. for example, the statue that prohibits fraud to defeat th lawful function of the unid 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 e concerned as the corporately -- as the courwod be about doing something that would undermine the presidcynd the executive branch. and 15122,e may have different viewonhe clarity and the scope of that statute. i think ofhe court -- if the court does interpret corrupt as invoina consciousness of wrongdoing and elevates that the consciousness of illegality, and a in a different realm. -- then weren a different realm. wanting to get reelected ino

an illegal motive and you don't have to worry about prosecuting presidents for that. >> thank you. >> justice kavanaugh? >>s you've indicated, this case has he plications for the presidency, and the future of the presidency, for the future of the country, in my view. you have referred tth department a few times as havi support of the position. who in the department? the president, the attorney general? >> sicor 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, th wreach 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 onheearing --er and now now of this se. 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 cision for the presidency and for the country. and not because there were bad op who were independent councils, but president reaga's ministration, president bush, president clinton's were really hampered, in their view, all three, by the independent counsel ruure. and what'm worried about here is that, let's relax article two a bit for the needs of the moment. d i'm worried about a similar kind of situation applyinger that was a prosecuto investigating a president in each of those circumstances, someone picked from the opposite party, current president, usually was how it worked. justice scia wrote the fairness of a process must be judgedn e basis of what it permits to happen, n wt it

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

nothing prevents it from being very bro. 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 osution, it tells us is not going to stop, it's going to cycle back and be used against the current nt 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 independe counsel regime did have ny structural features that emphasized independence at the expee accountability. we don't have tt gime now, but even underharegime, i think if you looked at lawrence wah's report on iran contra,

i thk goes to a very fundamental point for the cot to consider. judge walsh said, i investigated the matters, the proof did not merely come close to tablishing 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 ghtly 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 psetion that i think your honor is raising. we have a different system now. i think there was a consensus thughout washington that there were flaws in the independent counsel system. if lsed, we now are inside the justice department with full accounbity resting with the attorney general, so the special counsel relaon now doesn't operate the way that the indepeencounsel regulations do.

and this court wouldav something to say about it, i think, if the statute were revived. i'm not sure anybody is in favor of tha >> i was saying this is a mirror image of that, is one way somee uld perceive it. but i take your point about the ffent structural protections internally. likeusce scalia said, i do not mean to suggest anything of the sworthpresent case, we are not talking about the present case. i'm talking about the future. another point, youald about the criminal statute. it's very easy to characterize presidential actions afae or misleading under vague statutes. , president lyndon johnson, statements about the vtn war, say something is false. it turned t be false that he says about the vietnam war. -- what he says about the vietnam war. 371 prosecution after he leaves office? >> i think n.

this is an area that i dthk merits some serious and nuanced consideration. statements that are ma ba president to the public are not really coming with t realm of criminal statutes. they've nev bn prosecuted. i realizth the court can say wh if they were? and then i think you get twh i would regard as a hard constitutional question. i would probably gdehe court away from trying to resolve toy,lthough i do think it is very different from our case and in distinguishlend important ways. but you are dealing here with two branch ogovernment that have a paramount interest in the integrity anfrdom of their interactions with each other. on the one hd,he president of course should be very free to send, usually, his cabinet officials and subcabinet officials to congrs provide them with the information needed tonact legislation and to make national policy. and we are very concerned about

anything that would ame that. on the others the -- the other side of the equation, congress has a compelling interest in receiving accura iormation and at the very least, information that is intentiolland knowingly false. that would pollute -- >> how about president ford's pardon? very controversialn e 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' interfering with the investigation of richard nixon? >> so this would fall into that all 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 look athis very carefully and determined that, number one, the federal murder statute does apply to the executive branch, the president would be t rsonally carrying out the strike, but aiding and abetting laws are broad and it is determined that a public authority exception that is built in stutes and that applies particularly to the inverter statute tksbout unlawful killing did not apply to t dne strike. so this is actually the way th e system should function. the dertnt of justice takes criminal law very seriously. it runs through the analysis very carefully with established principles. it documents them,xpins them, and then the president can go forrdn accord. -- in accordance with it. and theris no risk of prosecution for that course of activity. >> thank you for your answers. justice barrett. >> iant to pick up with that public authority defense. i'm looking at that llc memo that davidar wrote that you cited in your briefs. he describes the public

auory defense setting the -- citg e model penal code with a few different definitions, but i wilju highlight this one. justifying conduct which is required or authorizedy e law, defining the duties or futis of a public officer, the law goveinthe armed servesr lawful conduct of war, or any other provision of law imposing a public duty. that sounds a lot like didg a line between oicl and private conduct. i think it is narrower and i recognize it is in his defense, not immunity. but when we look at the denition 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 soundsikto me. do you agree or disagree? >> i certainly understand th intuition that when you act outside of your lawful authority, you kind of been no

-- you kind of are no longer carrying iou i don't think that that quite works for presidential actit the only way he could have imemted the orders is by exercising his commander-in-chief authori er 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 possily as an unlawful executive act. >> i'm not sure i understand yo awer. it seems to me that in your brief today, when you referred tohe public authority defense, you said that is one of the built-in protections of why imnity is not necessary. because in somofhese instances, when the president takes such action that the court has been ain might this result in criminal prosecution, you say well he cod ise this public authority defense. i'm saying isn't this pli 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. >> corre. >> did that involve a look into motives, kind of le at justice gorsuch was asking? could you say i s ting within the scope of my authority by granting a pardon, removing a cabinet officer, but then the publicutrity defense might not apply because you had a bad motive in doing so? >> no, d'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 compefense to prosecution. >> what would be so bad? one thing thattres me as differen oone thing that is obviously different beeethe public authority defense and community is the interlocking appeal and having it resolved at the outset. what would bso bad about having a question like that resolved at the threshol 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 belie -- the court believes that with the appropriate way to craft pridential protections, it has the authority to craft procedural rules that implement its article two concerns. that said, public auory, we are calling it a defense, but under ma stutes it is actually an exception to liability self. -- liability iel what you are really talking ouis trying the general issue. generally, in criminal cases, even cases that involve first amendment issues like that statutes, the jury is the determinant of facts. and i have a ltlbit of difficulty with the idea of trying the who public authority issue separately to thjue and having that go up on interlocking tori pe

before you could getnta criminal case. that said, i would rather that , a regime in which the court alters some of the procedural rules rrnding the president, then a total absolute blanket immutyhat takes away the possibility of criminal prosecution, even iis a core violation of the statute of attorney general advice and has no overriding public authority. >> you think it has to be a jury quti? i wasn't necessarily proposing acally treating it as a defense that was going to be done at the outset and subject to appeal, i was proposing what about and immunityocine a true from the public authority defense of the departmenof justice that they think would otrwe apply? so just go with me on that for minute. why would it be so bad for it noto 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 jge.

>> 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 seesf pardons constituted obstruction of justice, i have a little difficulty hypothesizing it, but a motion to be made on the fac -- could be made on the face of indictment that says article tw includes congress from regular things activities, the indicted needs to be dismissed. if the court wished to attach to that kind of a rule interlocutorapal, that would be a lesser safeguard than the onthat my friend is proposing here. other kinds of defenses really do intersect with the general issue, and for those i have a ch greater time seeing how the courts could implement that. and would there be cost going to trial? yes, there is no perfect system he. we're trying to design a syem that preserves the effective

nconing of the presidency and the accountability of a former president und t rule of law. and the perfect system that calibrates all othe values probably has not been devised. i think that the system that we haveor pretty well, maybe it nes 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 tie 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 theedal government has, protections and the partner justice which obviously are noapicable 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 au analysis that would probably start with basic

principles, like mcculloch versus maryland. the states do not have the authority to bird and federal ncons and then would kind of move through and re-nagel where the court said that a state murder prosecution of a federal official guarding e preme court justice and who fired a shot was not permissib. if the court thought that you ed a more categorical rule for the states, i think e supremacy clause certainly leaves it within the court's erogative 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 stl a dense in the states. that is my point. it is one thing to say the president, they arnogoing to be these prosecutions that were politically motivated that might be theanr of the system. what justice kavanaugh was referring to. that might not carry the day, buthat is a concern.

it is totay fferent when you take it outside the department of justice and its structures and then you throw it out elsewhere. the idea across the stes, the idea of an iuny i think has a lot more purchase if you are talking about sothg that protectsheormer 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 authory a matter of supremacy clause law to find and immunity. -- find an immunity. but we he en talking here about to some length the distinction between official acts and privatect >> yeah. >> that will have to be determined by some sort of a process. animnity defense that the court announces can still be met by a state assertion that we are prosecuting private conduct, you are going to havto have some process. i think having some legal process is not rson to cast aside a nuanced syemhat tuly looks at what

protections are necessary as opposed to what would provide the absolute maximum insatn for former presidents, even if we acknowledgehat it is highly prophylactic. >> totally agree, and i wasn't contstg the absolute immunity rule, but saying if there is some sortf ofcial private, the consequence of making immunity. and since you bught up the private act,hiis my last question. i had asked on page 46 and 47, you say even if the court were inclin trecognize some immunity for a former president's official acts, the indictment alleges substantiaprate 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 r us to rendif we decided that there were some official acts of immunity and to let that be sort o below.

it is another option for the ecial counsel to just proceed based on the private conctnd drop the official conduct. >> well, two things on that. first of all, there's really an integrated conspiracy here that had diffencomponents 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 likelyo succeed. we would like to present that as an integtepicture to the jury so that it sees the sequcend the gravity of the conduct and why each step occurred. that said, if the corporate to -- if the court wereo y that the elector scheme is private, reaching out to state officials as a candidate is ive, trying to exploit the violence after january 6 by calling senators and saying please delay e certification proceeding is private campaign activity, we

still think contrary to wh m friend said that we could introduce the actions of the justice pament, the efforts to pressure the vice president for their evidentiary value as filling the defendant' knowledge and intent and we would take a jury stction 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. ats 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 ia ry explicit constitutional protection that sa sators and representatives shall not be questioned in any other place, sot carries an evidentiary component that is above an beyond whatever official act immunity he is seeking. and the last thing i would say on this, we think that the concerns othuse of evidence of presidential conduct that might otherwise oicial and subject to executive privilege is alrdyaken care of by

united states v. nixon. at balances the president's interests and confidentiality agnsthe 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 evenf lpability can't rest on it. >> thank you. >> justice jackson. >> just toicup where justice barrett left off, i think i heard you say th en if we decide here's something, a rule that is not the rule that you prefer, that is somehow serang out private from acts -- private from official acts ansaying 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 sehould be allowed to proceed, correct? -- to proceed? >> correct. >> because in an ordinary case, it wouldn't be stopped just because some of thac 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 ar't, the case would go

forward. going back to the clear statement argument, my understanding was that when 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 oi having to deal with the constitutional question. what is the constitutional question that bng avoided? >> this is just an application ts court ordinary construction of criminal statute that if there is an available terpretation that would avoid a ris constitutional question, the court preference is to -- >> my understanding is that what is being avoid ithat situation is the question of whether a former presidentan be held criminally liable for doing the alleged act that is being asserted in that statute nsistent with the constitution. so we look at the statute, it has gotten elements in it and we are saying ith statute and those elements applied to the president's conduct in the situatn,e have to answer the question in the president be held liable consistent with the cotition for that? >> the first step in the analysis, there's aiguity in those. similar words, any person apied 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 n the ordinary case, and what is confusing to me about this case is that not

being asked to avoid the constitutional question. in fact, the question of whether or notsident can be held lile consistent with the constitution or does he have immunity is the questionis being presented to us. so i don't understand how the clear stt kind of analysis even works. it seems completely title logical to me for us to all the under any criminal statutecuted without a clear statement from of whether or not the question constitution allow to be prosecuted. you have to have a reason, right? applying the clear statement for rule. >> there would havtoe 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 abo gtuities and the court is probably familiar with,

justice scalia wrote an opinio for unanimous court in which he used a hypothetical about what would happen if the president received a sportreica jersey at a typical white house event, woulth violate section 201c? the court offered a construction that it had to be cae of an official act to avoid that problem. thk if there was such a well-received understanding that presidents are not included in general federal criminal law unless a president is specificlyamed, which he is not, justice scalia would have thought of that and some member 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 ota about drawing the line, justic kavanaugh, justice gorsuch suggested that we shoulde thinking about first, we have

private vs. ofci. and then whiofficial we have some thing that core acts vs. otheac as we try to figure out at what level the presidt going to have immunity. but i took the petitioners argument in this case not to be inviting us to engage in that kind of analys. i thought he was arguing that all official acts did immunity, -- get immunit a so i didn't understands be having to drill down on which offici acts do. so my question is why isn't it enough for the ppos 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 answeredhaquestion the

way that the government has submitte tt resolves the case. i want to make a clarification at may have left the court with some uncertainty about. the official act analysis that friend is talking about is the fitzgerald vs. nixon out of perimeter test which is extremely protective oth president. it is saying that everything the president does is a target for lawsuits. that is not a great thinan therefore they are all cut off. >> anything th iofficial in the outer perimeter is not subject to liability. so wd'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 they absolute immunity or on r theory. on his theory, everything is protective. on ours, there is no immunity but this is where i've detroit

--he i have drawn the distinction. there is application of constitutional challenges that you run through the youngstown framework and isourt's customary method of analysis and you determine whether there is an infringenof article two. >> so what you're saying is even if we je the absolute immuni, it is not as though the president e't have the opportunity to make the kinds of arguments thatri at the level of this particular act or this particular state a problem in retrospect? i think i hear you saying we should not be trying to,n e abstract, set up those boundaries ahead of time as a funconf the blanket immunity to allow each allegation to be broughthen you would decide in that context? >> y, th the additional note that petitioners nev me that argument and think it would be up to a district court to decide whether to go that route at this point in t ligation. u ve put all of his eggs in the absolute immunity basket. >> and iweee the question presented is broader than that

and we do say let'engage with core officl d not core and try to figure out the line, is this t rht vehicle to hammer out that test? i mean, i had understo tt most if not alofhe allegations here, there's really no plausible argument that they would fall into core vs. t such that they are immune. >> we don't think there are any core acts that have enlleged in the indictments thawod be off-limits as a matter of article two. >> so if we are into do this kind of analysis, try to figure out what the line is, we should obly wait for a vehicle that actually presented in a way th 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 adnistrations have a self-interest in protecting e presidency, that they undeta that if they go after the former guy, soon they are going to be a former guy andhewill have created precedent that will be probleti 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 ll soon be former president as well. >> absolutely, and i would locate this as suctural argument that is built into the constitution itself. the exute branch, as this

court knows, as executive branch --asxecutive branch interests that at times asserts in opposition to congress, so th t proper functioning of the president is protected, and i belie at that value would be operative and use operative innything as the mentis discharging a former presint with a crime. >> and i would also say i think in ask you to comment, presidents are conrn 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 o se. but can you comment on the concern about having a president unbounded whilinffice? a president who knows that he do n ultimately have to follow the law because there is noing more than political accountability in terms of impeachment? weave amicus briefs from

professor lederman who says the president would not b prohibited by statute from perjuring himself under oath on official matters, from corrupting or concli documents to pve them from being used in official procdi, 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 crimil accountability wldo. 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 n president has had or has needed. i think we have also had a perfectly functioning system that has seen caonal 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