and may cite olc opinions and the district court may say, that's fine, i'm not bound by olc, and i interpret it differently, so let's go to trial. and then there has to be a trial, and that may involve great expense, and it may take up a lot of time, and during the trial the former president may be unable to engage in other activities that the former president would want to engage in, and then the outcome is dependent on the jury, the instructions to the jury and how the jury returns a verdict, and then it has to be taken up on appeal. so, the protection is greatly diluted if you take the form -- if it takes the form you have proposed. why is that better? >> it is better because it is more balanced. the blanket immunity that petitioner is arguing for just means that criminal prosecution is off the table unless he says that impeachment and conviction have occurred. those are political remedies that are extremely difficult to achieve in a case where the conduct, misconduct occurs close to the end of a president's term, congress is unlikely to crank up the machinery to do it, and if the impeach

i cite the olc opinions. what you see a a strong trend if there is any statute that might stren much on the president's prerogatives, they interpret it to avoid that. >> if a president sells nuclear secrets to a foreign adversary, is that immune? >> likely not immune. structured as an official act he would have to be impeached and convicted first. >> i don't know in the hypothetical whether it would be an official act. more details to apply the case analysis or even the fitzgerald analysis. >> how about if a president orders the military to stage a coup? >> i think that as the chief justice where there is a series of guidelines against that, so to speak, ucmj prohibits the military. if one adopted alito's test it would fall outside. the fitzgerald case might be an official act. all these kinds of hype that calls has been top impeached and convicted. >> he is gone, let's say the president who ordered the military to stage a coup. no longer president. wasn't impeached and couldn't be impeached but he ordered th

ateems to be with the olc opinions suggest. i know you have a little bit of a disagreement with that. >> justice kavanauwould like to take all of those in turn because i do not think this court's cases speak that broadly and i d't think the office of legal counsel's opinions stand for thad proposition that unle t president is specifically named he is not in the statute and i don't think that is necessary to afford advocate protection for the president's valid article two functions. >> sorry to interrupt but i want to get ts t and you can incorporate it. you set unless there is a ris constitutional question. it is a serious constitutional question whether a statute can be applied to the president's official acts, so wouldn't you ways interpret the statute not to apply to the presidenev under your formulaonnless congress had spoken with clarity? >> i don't think across-theoa that a serious constitutional question exists on applying any criminal prosecution to the president. >> the problem is the vagueness that can be used against

i'm not bound by olc and let's go to trial. the trial may involve great expense and take up a lot of time and during the trial the former president may not be able to engage in activities that he would want to engage in and the outcome is dependent on the jury, instructions to the jury and how the jury returns a verdict and taken up on appeal. so the protection is greatly diluted if you take the form -- if it takes the form that you have proposed. why is that better? >> it is better because it is more balanced. the blanket immunity that petitioner is arguing for just means that criminal prosecution is off the table unless he says that impeachment and conviction have occurred. those are political remedies extremely difficult to achieve in a case for the conduct, misconduct occurs close to the end of a president's term congress is unlikely to crank up the machinery to do it. if the impeachment trial has to occur after the president has left office there is an open question whether that can happen at all. >> you are arguing agains

i'm not bound by olc& i interpret it differently. so let's go to trial and then there has to be a trial. and that may involve great expense and it may take up a lot of time and during the trial, the former president may be unable to engage in other activities that the former president would want to engage in and then the outcome is dependent on the jury the instructions to the jury, and how the jury returned a verdict. and then it has to be taken up on appeal. >> so the protection is greatly diluted. if you take the form. if it takes the form that you have proposed on why is that better it's better because it's more balanced against the blanket immunity that petitioner is arguing for. >> just means that criminal prosecution is off the table. table. unless he says that impeachment and conviction have occurred. those are political remedies that are extremely difficult to achieve in a case for the conduct misconduct occurs close to the end of a president's term congress is unlikely to crank up the machinery to do it. and if the impeachm

i'm looking at the olc memo that david barren wrote. he describes the public authority defense citing the model penal code. there are a few definitions. i will highlight this. justifying conduct which is required or authorized by the law defining the duties or functions of a public officer, the law governing the armed services or lawful conduct of war or any other provision of law imposing a public duty. that sounds a lot like dividing a line between official and private conduct. i think it's narrower. i recognize it's a defense not an immunity. when we look at the definition of it, are you acting within the scope of authority conferred by law or discharing a duty? it's narrower than nixon versus fitzgerald, but that's what it sounds like to me. >> i certainly understand the intuition that when you act outside of your lawful authority, you have gone on a frolicking detour, you are no longer carrying it out. i don't think that quite works for presidential activity. the only way that he could have implemented the orders is by exercising h

. >> as a nine-year-olcs was windn was it bill clinton or joe biden? clint >> hmm.on do they have tv when joe biden ? >> that's the question. i guess maybe it was that's . >> i'm going to go with clinton because you said fibber. yeah. okay>> i'm g. st this is going to steer it. and i goeet to yeah, i think alex, the republican and democratic catches on television. >> all right. martha needs this one. so in the interest of sportsmanship, we're going to make the finais onen l worth two points. >> okay. all right. there we are. you can just do that. i can do whatever i want. okay. chelsea, what was primetimeo wht getting mooned? >> the whole country stoppedev i to. >> watch the solar eclipse this past monday. but one basketball legennto d wasn't impressed, calling the people who watched it losers charles or shaqd called the clippers. ecs, girls,loser >>sers, losers. >> standing outside watching the to see. oh, you get back very much martha raddatz on the hot seat win. baby i think i went swimming and i'm thanks twitter in around her old neighborhood. >> i

if right now the fact that we're having this debate because olc has said presidents might be prosecuted, presidents over time have understood that's a possibility, that might be what has kept this office from turning into the kind of crime center that i'm envisioning. but once we say no criminal liability, mr. president, you can do whatever you want, i'm worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he's in office. >> let me put this worry on the table. she says justice ketanji brown jackson today speaking plainly, taking a step back to see the larger picture today. we keep saying how terrible it would be if the president was put on trial for his crimes. can we also talk about how terrible his crimes would be and how terrible it would be for the presidency and for the country going forward if all future presidents knew they can commit any crime they want and there's nothing anyone can do about it. chris hayes, i was worried your head was going to -- >> well, because i had the same experience listening to oral arg

in these exceptional cases, as the olc memo itself points out from the department of justice, you'd expectconviction. >> these are not theoreticals. donald trump is running on a promise to pursue general chairman mark milley. he has promised, quote, retribution, end quote. tell me your reaction to this extraordinary act of braver outside the norms for the esteemed list of military officials to sign an amicus brief to the supreme court? >> nicole, it is, first of all rare, military men and women are loathe to wade into things outside of their lane, to use his term. so to the extent that they did so here, filing an amicus brief in a united states supreme court case, it demonstrates a high degree of alarm. and it's justified, as you just said, there's been a lot of indication that the -- that if there is a second term, that there would be an attempt to misuse the military. we don't have to look just at statements prospectively, we can look at the record. the record that the select committee developed is replete with examples of the former president's misunderstanding of the fundamental indepe