but on the other hand, in the united states versus nixon, the us supreme court said that executive privilege is not sacrosanct and that there are times when the president has to yield documents. and so we just have never had this specific issue come up because a president has not been indicted or a former president has not been indicted before we came close with mr. nixon, president ford decided it was not in the interest of the country to go forward with a prosecution of mr. nixon. and so he pardoned him. but the assumption at that time, 50 years ago, was that mr. nixon, as a former president, was indeed subject to prosecution. so the supreme court has not weighed in on this, so it's worthy of their weighing in, but they don't have text to support the position. all right. >> so what did the justices seem to think today based on their questions? if you can read the tea leaves and trying to gauge what they're thinking and how they might rule here. >> sure. i mean, it seemed as if the concerns were on the one hand, is it more dangerous to have a president who can feel as if there's nothing tha

the united states versus nixon wasn't a textually based case, nor nixon versus fitzgerald. what is important is that no public official has ever had the kind of absolute criminal immunity that my friend speaks of, even with respect to the speech or debate clause. it is very narrow. it is focused on legislative acts. it is not focused on everything that a congressman does. and it responds to a very specific historical circumstance that basically involved the two other branches, potentially harassing legislators and preventing them from doing their jobs. that's why it ended up in the constitution. nothing like that ended up in the constitution for the presidents, and that's because one of the chief concerns of the framers was the risk of presidential misconduct. they labored over this. they adopted an impeachment structure that separated removal from office as a political remedy from criminal prosecution. this departed from the british model. the british model was you get impeached and criminally prosecuted and convicted in the same proceeding. the framers did not want that.

united states versus nixon wasn't that type of case. or fitzgerald. we endorse those holdings. what is important that no public official has ever had the kind of absolute criminal immunity that my friend speaks of even with respect to the speech or debate clause. it is very narrow focused on legislative acts, not focused on everything that a congressman does. it responds to a very specific historical circumstance that basically involved the two other branches potentially harassing legislators and preventing them from doing their jobs. that's why it ended up in the constitution. nothing like that ended up in the constitution for the presidents and that's because one of the chief concerns of the framers was the risk of presidential misconduct. they labored over this. they adopted an impeachment structure that separated removal from office as a political remedy from criminal prosecution. this departed from the british model. that model was you get impeached and criminally convicted in the same proceedings. the framers wanted a political remedy in case a president was engaging in c

in the united states versus nixon, the executive privilege case, you said that information can be introduced as part of an indictment, even if it bumps up against executive privilege. it just can't be the basis for the criminal act. i do think there is that possibility, that the court could steer this in that way and the chief justice i think is acutely aware of some of that dynamic that andrew is talking about. we have lived with the supreme court under republican control our entire lifetimes. i'm 54 years old, it has been every year it has been under republican control. this supreme court is more conservative than any before and is yielding decisions like jobs and the like. i do think the chief is acutely aware of the institutional dynamics of the court. to side again with donald trump and put him above the law, i think that is a bridge too far. that is the hope. we will see what happens. >> andrew, that is kind of the best case we could get out of what i think we heard today. the other version of it is that they say there is some distinction between what we call an official act and an uno

using presidential conduct that might be subject to executive privilege is taken care of by united states versus nixon. that balances the confidentiality against the need of the judicial system for all available facts to get to the truth. once that has been overcome, we submit that the evidence can be used even if culpability can't rest on it. >> thank you. >> justice jackson? >> to pick up where justice barrett left off. i think i heard you say that even if we decide here something -- a rule that's not the rule that you prefer, that is somehow separating out private from official acts and saying that that should apply here, there's sufficient allegations in the indictment, in the government's view, that fall into the private acts bucket that the case should be allowed to proceed? >> correct. >> because in an ordinary case, it wouldn't be stopped just because some of the acts are allegedly immunized, even if people agree some are immunized, if there are other acts that aren't, the case would go forward? >> that is right. >> going back to the clear statement argument. i'm struggling with that argument.

otherwise be official and subject to it triplets is already being taken care of by the united states versus nixon. that balances the president's trust on confidentiality, for all available facts to get to the truth. once that has been overcome we submit that the evidence can be used even if culpability cannot rest on it. >> thank you. >> justus jackson. >> to pick up a where she left off, i think i heard you say even if we decided here, a rule that is not the rule that you prefer, that is somehow separating out private from official acts, and saying that that should apply here, there is sufficient allegations in the indictment and the governments feel that fall into the private acts bucket that the case should be allowed to proceed. because in a ordinary case, it wouldn't be stopped just because some of the acts are allegedly immunized, even if people agree that some are immunized. if there are other acts that are not the case would have gone forward. >> that is right. >> going back to the clear statement, the clear statement argument, i am struggling with that argument because my understanding w

we do not submit that is the end the united states versus nixon was not a textually based case neither was nixon versus fitzgerald. we endorsed both of those holdings. whats portant is that n public official has had ab criminal immunity that my friend speaks of, even with respect to the speech or debate clause. it is narrow and is focused on legislative acts, it is not focused on everything a congressman does, and it responds to a specific historal circumstance that involved the two other branches potentllharassing gislators and preventing them fr doing their jobs. that is why it ended up in the constitution. nothing like that ended up in president anth is because one of the chicerns of the framerwathe risk of presidential misconduct. they labored over this. ey adopted an impeachment structure that separated removal from office as a political remedy from criminal prosecution. this departefr the british model. the brith del was you get impeached and criminally prosecut a convicted in the same proceeding. amers did not want that. they wanted aolitical remedy in case a president was engi

united states versus nixon wasn't a textually based case, neither was nixon versus fitzgerald. we endorse both of those holdings but what is important is that no public official has had the kind of absolute criminal immunity that my friend speaks of, even with respect to the speech or debate clause. it's very narrow. it's focused on legislative acts it's not focused on everything that a congressman does. and it responds to a very specific historical circumstance that basically involved the two other branches potentially harassing legislators and preventing them from doing their jobs that's why it ended up in the constitution nothing like that, ended up in in the constitution for the president's. and that's because one of the chief concerns of the framers was the risk of presidential misconduct they labored over this. they adopted an impeachment structure that's removal from office has a political remedy from a criminal prosecution. this departed from the british model, the british model was, you get impeached and criminally prosecuted and convicted in the same proceeding the fr