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

. >> that sounds a lot like blasingame. if you look at the separate opinion, that may not be different than what we propose in court today. >> blasingame had to do with the different dream private and official conduct. >> that's what i understand. >> this would apply and it's a possibility t don't know whether it's a good or bad idea or can be derived from the structure ofheonstitution or any other source. but this would be applied in a rely objective grounds. when the president invokes an official power in tanghe action that is at issue. >> the reason i inof blasingame is it talks about an objective context with specific determination to winnow out a's official and private conduct. >>'m sorry, if i understood justice alito, he suggesting that. he is suggesting whether even if it is an official act whether you still animmunity if that act does not plausibly viewed as with t 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 file th

>> on this one, the department hasn't taken the next step since the blasingame decision. let me offer a few thoughts that might clarify it. the blasingame decision focused on objective contextual indications to try to see whether the president was acting as a campaigner as opposed to an officeholder. i think that that decision can also be made by looking at what the president actually said. let me illustrate that with an allegation. >> weekly. >> in one of the interactions between petitioner and a state official, petitioner is alleged to have said, all i need you to do is find me 11,000 votes and > change. i think if you look at that content, it is pretty clear that petitioner is acting in the capacity as office seeker, not as president. and we would look at that content. >> but i am just focused on the legal test. i'm not hearing any objections to it. >> other than i think the d.c. circuit placed more content consideration off-limits than i would. >> okay. and then i wanted to understand on the core immunity, or whatever word we use, that it seems to me we are narrowing

the blasingame decision focused on objective, contextual indications to try to see whether the president was acting as a campaigner, as opposed to an officeholder. i think that that decision can also be made by looking at what the president actually said. let me illustrate that with an allegation -- >> briefly. >> briefly. and one of the interactions between petitioner and a state official, petitioner is alleged to have said, all i need you to do is to find me 11,000 voters. i think if you look at that content, it is pretty clear that petitioner is acting in . the capacity as office seeker, not as president and we would look at that content. look at that content. legal test. i am not hearing any legal objections to it. >> other than the d.c. circuit placed more content consideration off-limits than i would. >> okay. all right. >> on the core immunity, or whatever word we use, it seems to me that we are narrowing the ground of dispute considerably. do we look at motives, the president's motives for his actions? for example, lots of war power as we have discussed but he might use them in o