from prosecution. >> we will hear argument this

morning in case 20 39 39, trump versus united states. >> mr. sour? >> mr. chief justice and may it please the court, without presidential immunity from criminal prosecution, there can be no presidency as we know it. for 234 years of american history, no president was ever prosecuted for his official act. the framers of our constitution viewed an energetic executive as essential to securing liberty. if a president can be charged, put on trial and in prison for his most controversial decision as soon as he leaves office, that looming threat will distort the president's decision-making precisely when bold and fearless action is most needed. every current president will face de facto blackmail and extortion by his political rivals while he is still in

office. the implications of the court's decision here extend far beyond the facts of this case. could president george w. bush have been sent to prison for obstructing an official proceeding or allegedly lying to congress to induce war in iraq? could president obama be charged with murder for killing u.s. citizens abroad by drone strike? could president biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policy. the answer to all these questions is no. prosecuting the president for official acts is an innovation 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 unbroken historical tradition spanning 200 years and policy considerations rooted in the separation of powers all counsel

against it. i welcome the courts questions. >> mr. sauer, to your last point koba could you be more precise? -- your point. could you be more precise? >> it's rooted in the vesting clause. >> how does that happen? >> the source of it is that the executive vesting clause does not include only executive powers laid out there and but encompasses the powers originally understood to be included therein and marbury against madison itself provides 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 of the 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 level of specificity at which the acts are described and that case which was a civil case. >> let's say the official act is appointing ambassadors ithe -- and the president appoints a particular individual to the country but it's in exchange for a bribe and somebody 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 act which matches a common-law background. the way the court distinguished is these are not official acts. it would be essentially unrestricted will before the

congress. >> accepting the bribe is not an official act but appointing an ambassador certainly within the official responsibility of the president. how does your official acts or the official acts order or boundary come into play and it's going to be official assuming the president is innocent. the question is whether he will be found innocent or guilty. >> 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 what's not official. >> you say we are prosecuting because you accepted $1 million as -- are you supposed to not say what it's for because within

the president's official duties? >> there would have to be an individual source of evidence for that. this indictment charges what this court describes as un to scriptable powers by the president. they are purporting to regulate the exercise of the president, things like his ability to speak directly to the american public and core exercises of his authority under the recommendations clause. the measures he thinks necessary and expedient. you have an indictment of this case that goes of the heartland of the president's powers. it alleges a series of official acts and tries to tie them together by saying there was a private purpose in that case and that's the situation which could be -- >> it has to be alleged but it has to be proven. it's a concept longiewed as an -- is appropriate that there is something so fundamentally evil that they have to be protected

against. i think and your answer below, i will give you a chance to say if you stay by it -- if the president decides that his rival is a corrupt person and he orders the military or order someone to assassinate him, is 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 personal 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 for personal gain. isn't that the nature of the allegations here? that he'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 that the series of official acts -- >> community says even if you -- no because immunity says even if you did it for personal gain, 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 actually talked about whether to grant immunity to the president. in fact, they had state constitutions that granted some criminal immunity to governors. and yet they didn't take it up. instead, they passed an

impeachment clause that basically says you cannot remove the president from office except by a trial in the senate but you can impeach him after. or you can impose criminal liability. we would be creating a situation in which we would be saying, this is what you are asking us to say which is that a president is entitled not to make a mistake but more than that. the president is entitled for total personal gain to use the trappings of his 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 that immunity does not turn on allegedly proper motivation is something this

court has reaffirmed 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 a hard time thinking that creating false documents that submitting false documents, that ordering the assassination of a rival, accepting a bribe and countless other laws that could be broken for personal gain, that anyone would say that it would be reasonable for a president or any public official to do that. >> this was answered very persuasively in fitzgerald that this particular act would be done for an unlawful purpose or was unlawful could be in every case and therefore if that was the doctrine that the allegation of improper purposes what deprives the objective act

or of immunity that immunity would have no purchase and that's reflected in many cases. >> isn't the work of the improp motive at least in the absolute immunity context to tell us what our official acts and what are not? i understood that even -- first of all, your ask is your principal position. you want the same kind of doctrine we've applied in other contexts when you say in official has absolute immunity. my understanding is when we say that, we mean for their official acts. is that right? >> yes. >> so any official acts in that world, the real decision-making from a court standpoint is whether or not something is an official act or not, correct? >> that's an important determination. >> that's the determination in the absolute immunity world 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 sotomayor brought up, one could say that when the president is using the trappings of his office to achieve a personal gain, he's actually not acting officially even at the doctrine was absolute immunity so what do you say about that? >> to the last point, that allegation that this was motivated by an improper private purpose could be made in every single case. >> i understand that but it would have to be made just even if we had the doctrine of absolute immunity, that same allegation and the facts related to it would come in because the person would be arguing that he was not acting in his official capacity and not doing something official, he was doing it personal, correct? >> i agree but the objective -- the point i would make is that in fitzgerald, they emphasize

that would result in an intrusive discussion 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 the presidential 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 there was a threat of prosecution if for no other reason than the constitution suggests they can be prosecuted after impeachment, that the office of legal counsel had said forever that presidents are

amenable to a threat of prosecution and they have continued to function and do their job and do all the things presidents do. it seems to me that you are asking now for a change in what the law is related to immunity. >> from what benjamin franklin said at the constitutional convention which reflects the founders original understanding which is at the constitutional convention, benjamin franklin said his three -- this provides one example only of a chief magistrate who is subject to criminal prosecution and everybody cried out against that. >> i understand but since benjamin franklin, everybody has thought including the presidents who held the office that they were taking this office subject to potential criminal prosecution, no? >> i see the evidence going the other way. marbury versus madison discusses brought immunity. >> what was up with the pardon for president nixon?

everybody thought that presidents couldn't be prosecuted, than what was that about? >> he was under investigation at the time with official and private conduct. everyone understands that since president grants carriage ding incident, everybody has understood that the present can prosecuted. -- the president can be prosecuted. >> there seems to be common ground be just between you and your colleague and the other side that no man is above the law and the president can be prosecuted after using his office for his private conduct, is that right? >> we agree with that. >> as we have been exploring today, the question becomes and how to segregate 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

expressed some views about how to segregate private conduct for which no man is above the law from official acts. do you have any thoughts about the test they came up with there? >> especially if it's understood through the lens of a separate opinion is a persuasive test. it would be a great source for this court to rely on. it emphasizes the breadth of that test and talks about how actions that are plausibly connected to the president's official duties are official acts and it emphasizes but close -- if it's a closed 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 to take in this case. the court should and reverse the holding of the dc circuit that

there is no thing is official acts -- >> you would agree further proceedings would be required? >> that's correct. i would point to anderson versus creighton where there is two stages of proceedings. there is looking at the indictment and the charging documents and see if alleging official acts and if not, determine there could be a factual proceeding under mitchell against foresythe -- would have to occur. >> go ahead. >> you began what you believe that immunity from criminal prosecution is essential for proper functioning of the presidency. my question is whether the very robust form of immunity you are advocating is really necessary in order to achieve that result. just to take one possible alternative, suppose the rule

were that a former president cannot be prosecuted for official acts unless no plausible justification could be imagined for what the president did, taking into account history and legal precedent and the information 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 lower course. -- the lower courts. we think it would be insufficient because the law is talking about using the presidents motives and intrusive consideration of the presidents motives as transforming acts official and unofficial would come into play. 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 objective, it would look objectively at the various relevant factors. >> 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 but i don't know whether it's a good or bad idea or can be derived from the structure of the constitution or any other source. but this would be applied in a purely objective grounds. when the president invokes an official power in taking the action that is at issue. >> the 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 alito, he suggesting not that. he is suggesting whether even if it is an official act whether you still grant immunity if that act does not plausibly viewed 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 file that 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 plausibly legal to order seal team six and i don't want to slander seal team six because seriously they are honorable. they are bound by the uniform code of military justice not to obey unlawful orders. i think one could say that it's not plausible that that is legal, that the action would be legal. i'm sure you've thought of lots of hypotheticals and i'm sure you have as well where president could say i'm using an official power and yet the president uses it in an outrageous manner. >> that may well be an objective determination. >> apply it the allegations here. what is plausible about the president assisting in creating a fraudulent slate of electoral

candidates. assuming you a sect the facts of -- you accept the facts of the complaint on their face, is that plausible that that would be within his rights to do? >> absolutely, we've had historical precedent with president grant sending federal troops to mississippi to make sure the republican electors got certified in those two cases which delivered the election to rutherford b hayes. the notion that that is implausible, can't be supported based on this indictment -- >> knowing that the slate is fake and they weren't actually elected and they weren't certified by the state, he knows all those things? >> the indictment itself alleges an effects of word label to the -- affixes the word label to the

word fraudulent. that's a complete mixed characterization. it was there no deceit about who had emerged from the convention and this was done on an alternative basis. i want to address the higher level point which is that there is a whole series of structural checks other than criminal prosecution that are designed to deter these kinds of outlandish scenarios or obviously illegal things. that'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 determined what was official versus what personal? >> i read the opinion below in this case. it does not matter the logic of their opinion. there is no immunity for official acts and therefore that is the end of the story. i don't really think they went wrong in blasingame when they engaged in the same determination with respect to

what's official and what isn't. there we agree with most of what that opinion says. >> for some official acts that are not within the article to -- the article ii exclusive power so official acts but not within the article 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 official acts are going to be criminalized. >> obviously, at the highest possible level when it comes to the unrestricted will powers in this indictment -- >> i'm assuming the exclusive powers are walled off and can't be prosecuted. there are a lot of official powers that are not exclusive to the president under article two authority. for those, i understood you to say at a minimum, there would need to be a clear statement in the statute referencing the president so that the president is on notice and can conduct himself or herself accordingly.

>> that's correct and that would be consistent. >> can i follow up on that? you can see the private act don't get immunity. >> we do. >> in the special counsel brief on pages 46 and 47, he urges us even if we assume or were to decide or assume there was some sort of immunity for official acts that there was insufficient -- was sufficient private acts meant for the trial -- for the case to go back into trial immediately. i want to know if you agree or disagree about the characterization of these acts as private. the commissioners let that spread to a private attorney and was willing to spread rumors about election results. >> it sounds private. >> he conspired with another private attorney that had the false allegation to support a challenge. >> that also sounds right.

>> three private act through attorneys and a political consultant help implement a plan to submit fraudulent electors to obstruct the certification results. >> i believe that's private. >> so those acts you would not dispute, those were private and you wouldn't raise a crank -- raise a claim they were official? >> but we would say is officials things like being with the -- meeting with the department of justice to deliberate about who will be the acting internal -- attorney general of united states, comparing cadets committed getting to the public or the senate. >> thank you. >> thank you, counsel and what is the consequen in terms of going forward with your acknowledgment that those are private acts as opposed to official acts? >> if you look at the indictment here, there's a bunch of acts that are clearly official. there may be allegations that mostly relate to what the government has described as

private aim or end and the court should address its output remand 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 to be a determination of what's official to stage a determination. >> if you expunge the official part from the indictment, that's like a one legged stool. giving somebody money is not 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's within the president's prerogative. the unofficial part is i will get a million dollars for it. if you say you have to expunge the official part, how does that go forward? >> this particular indictment, we don't believe it would be able to go forward. if you look at the government's brief in his case divides the indictment into things other

than the electors allegations. they haven't disputed it if they are official acts but they say we tied together by characterizing it as done in the allegations the court just referred to by an improper private aim were end that just - or private end and that just runs at loggerheads. the improper motivation is what you look at. >> justice thos? >> in assessing the official acts of a president, do you differentiate between president acting and the president acting as a candidate? >> yes, we do. we don't dispute the blazing -- the blasingame objective of that. >> in this litigation, did you

challenge the appointment of special counsel? >> not directly but we have done so like in the florida case and we agree with the analysis 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 extraordinary 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 expunged from the indictment, that in itself would not achieve much unless evidence of those official acts were precluded at trial. is that what you are saying, that prosecution should not be permitted 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.

guests if you have a scheme to defraud or a scheme to accept bribery, there is evidence from which you can infer that screen -- that scheme and one is the appointment actually happened. it's an official act. you wouldn't expunge that as evidence. you would instruct the jury that there is no viability for the actual appointment. the liability is for accepting the bribe. similarly here, i don't think the indictment is charging that the obstruction occurred solely because of conversations with the justice department. they are saying you look at all of the private acts and you look in the context of some of the public acts and you can infer the intent, the private intent from them. i'm not sure that i understand why your problems couldn't be taken care of at trial with an instruction if we believe, if the court were to find and i'm not sure how they could but if it were to find that some public acts could not be the basis of criminal liability. >> the best thing i can say to that and i think this ties into the chief justice's question about a one legged stool. rooster and johnson in -- brewster and johnson in subsequent cases essentially say that that this is a one legged stool problem. some of the prosecutions can proceed in that the implication of official immunity which is dictated in the constitution by the executive vesting clause.

>> justice kagan? >> to continue on in justice barrett's vein and ask you about some of the allegations of the indictment and whether they are official acts were 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 electors votes would be used only of ongoing litigation and one of the states changed the results of the defendants favor? >> 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 done 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 so. based on the allegations, it's clear he did not that this was done in an official capacity. >> the defendant asked the arizona house speaker to call the legislature into session to 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 officials and urge them to view what he views as their job under state law and federal 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 overthrow an election. >> exactly right and neither allegation should make a

difference as to 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 beyond what olc has ever claimed for a former president? >> the opinions here are strong supporting us because 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 former president's? no. there might be a different argument made about whether a statute or whether 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 way. i don't recall them addressing it but there is the language of cases like marbury and statements made by benjamin franklin at the constitutional convention, statements of george washington talking about the massive risk of strife and how that could destroy the government. that's what we rely on principally. i cite the olc opinions because if there's any statute that 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 sounds similar 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 an official act? >> i don't know whether that would be an official act. you'd have to apply a different

analysis. >> how about if a president orders the military to stage a coup? >> as the chief justice pointed out earlier, there is a whole series of guidelines against that. ucmj prohibits the army from following a plane fully unlawful act. if one adopts the fitzgerald test, that might be impeached and convicted before he is criminally prosecuted. >> well, he is gone. let's say this 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. that's immune. >> i think it would depend on

the circumstances whether it was an official act. >> what does that mean depend on the circumstances? he was the president, he is the commander-in-chief. he talks to his generals all the time and he told the generals i don't feel like leaving office and i want to stage a coup. is that immune? >> if it's an official act, there needs to be impeachment and conviction before and -- before hand because the framers knew the risk. >> is it in official acts? is it an official act? >> the way you described that hypothetical, 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 series of structural checks that have successfully for the last 240 years prevented that very kind of

extreme hypothetical. that is the wisdom of the framers. what they viewed as the risk that needed to be guarded against was not the notion the president might escape criminal prosecution for something very unlikely. they view it much more likely and describe -- and destructive to the public the risk of -- >> the framers did not put an immunity clause into the constitution. they knew how to. they knew how to give legislative immunity. they didn't provide an to the president. not so surprising, they were reacting against a monarch who claims to be above the law. wasn't the whole point that the president was not a monarch on the president was not supposed to be above the law? >> they did put in immunity clause, the executive action close -- clause which set forth in broad language marbury against madison. they also discussed and

considered what would be the checks on the presidency and they did not say he had criminal prosecution at the constitutional convention. benjamin franklin said that was not an option. everybody cried out that that was not constitutional. it is very clear on that in the second volume. >> thank you. >> justice gorsuch? >> returning to the chief justice's hypothetical about the ambassador sale in bribery. congress has a statute that names the president and says he can be criminally prosecuted for bribery presumably after he leaves office. outside the core areas the justice kavanaugh was talking about, when congress speaks clearly, couldn't a statute like that, couldn't congress provide a statute like that that would

allow all manner of evidence to come in to prove the case? >> our position is that would have to be an unofficial act, purely private conduct for the prosecution to go forward. >> but outside the core areas of executive power, if there is a clear statement from congress that something is unlawful and it applies to the president, i'm struggling to see why in that case perhaps the evidence could come in. >> the strongest possible cases what you described describe as the core executive powers. the unrestricted bowl powers. this doesn't turn on how central it is of a legislative act is. it's an unofficial act which applies to the outer perimeter of the fitzgerald. >> what would happen if presidents were under fear that their successors would criminally prosecute them for their acts in office, whether

they are engaged in drone strikes, you know all the hypotheticals. it seems like one of the incentives that might be created is for presidents to try to pardon themselves. do you have any thoughts about that? >> i didn't think about it until you asked it. that might be created. >> we've never answered whether a president can do that. happily, it's never been presented to us. >> if that remains in place, that will likely remain the case. as fitzgerald powerfully emphasized is the real concern of being bold and fearless action. is the president going to have to make a controversial decision where his political opponents will come after him that minute he leaves office? will that unduly deter, will that dampen the ardor of that president to do it our constitutional structure demands of him or her which is bold and fearless action in the face of controversy. >> perhaps 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't contest that everybody following an unlawful order can can be immediately prosecuted, do you? if the president gives an unlawful order, call in the troops in the examples we've heard, every subordinate faces criminal prosecution, don't they? >> that is what it was said at the constitutional convention. they would have to be a statute that would cover for them to be prosecuted. >> we've got lots of statutes. the criminal law books are replete.

is that one check that's available? >> absolutely. 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 rule might be employed and you might not be able to go after that president. i don't think congress says we can go after the president but we can criminalize the way the president talks to congress and we will put in a criminal statue that says if you provide false information to congress, in carrying out the president recommendation powers, you can be prosecuted. that would be a difficult question. the fundamental point of drawing that distinction is an excellent distinction. >> to follow up on the olc opinion question, they articulate a clear statement

rule as to this court's case 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 official versus what's personal. for the bucket that is official, there is no clear statement period? >> that's right. as to private conduct, we don't think the clear statement rule would be invoked. these statutes in the indictment are far afield to criminalize in clear terms the president's official acts. >> just to clarify this, the president's not above the law, the president is not a king. the founders thought that.

in response to that, the president is subject to prosecution for all personal acts just like every other american. the question 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 years. >> on the source of immunity, do -- it is not explicit in the 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 constitution encompassed executive privilege in the same principle presumably would apply to executive immunity being the -- being encompassed in that executive power is historically understood. >> 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 the time of 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 enough, it has to be taken away which is the opposite of the presumption they are advancing here. >> lastly, i think you've acknowledged in response to other questions that some of the acts in the indictment are private. your view is that some are official. is it your position that that an analysis 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. >> justice barrett? >> you've argued that the impeachment clause 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 sitting on this bench. i don't think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment. why is the president different when the impeachment clause doesn't say so? >> someone how important has -- someone very important has made the opposite 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 judgment clause 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 constitution and hundreds of years 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 opportunity for impeachment? >> the framers assumed the 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 president, 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. under franklin, it's not a magic word requirement. more fundamentally, they can see there are statutes that exist. much impeachment can occur as a result of private conduct. the impeachment judgment clause, it does significant work by authorizing the subsequent prosecution of a president. what the framers were discussing in the constitutional convention was concerns about private conduct. >> pick up justice kagan's example of a president who orders a coup, let's imagine he is impeached and convicted for ordering that coup and let's accept for the sake of argument your position that that was official conduct.

you are saying he couldn't be proud -- could not be prosecuted for that even after conviction and impeachment proceedings? if there is not a statute that expressly referenced the president and made it criminal for the president? >> there would have to be a statute that made a clear statement that congress has to regulate the president's conduct. >> thank you. >> justice jackson? >> i now understand better your position in your discussions with justice kavanaugh. it became clear you are saying that for the private acts of a president, there is no immunity but for the official acts of the president there is immunity. is that your position? >> i agree with that. >> one thing that occurs to me is that this sort of difficult line drawing problem we are having with these hypotheticals is it a private actor republic -- act or a public act? it is being necessitated by that assumption. if official 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 determination -- >> to the extent we are worried about how do we figure out whether it's private or public on the we have to understand we are only doing that because of an underlying assumption that the public acts get immunity. let me explore that assumption. why is it as a matter of theory and i am hoping you can zoom way out here, that the president would not be required to follow the law when he is performing his official acts? everyone else, there are lots of folks who have very high-powered jobs to make a lot of consequential decisions and they do so against a backdrop of potential criminal prosecution if they should break the law in that capacity. we understand and we know that

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

sure, but there are lots of people who have to make life-and-death decisions 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 situation in which the president actually was in a different position than other people. because of the nature of his job, the high-profile nature and the fact that he touches so many different things. when you talk about private civil liability come anybody on the street consume him. we can see that the present was sort of different than the ordinary person if you say he should be immune 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 just doing whatever he wants? >> all the structural checks identified in fitzgerald. >> public oversight, there is a long series. fitzgerald addressed this in the civil context. >> i'm not sure that is much of a backstop. i guess what i'm more worried about is you seem to worry -- be worried about the president being chill. i think we would have a significant opposite problem if the president was not chilled. if someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority could go into office knowing that there would be no potential penalty for committing crimes, i'm trying to understand what the

disincentive is from turning the oval office into the seat of criminal activity in this country. >> i don't know if there is any allegation of this case. what george washington said -- what benjamin franklin said is we have use the prosecution about chief executive that everyone cried out on and george washington said we are worried about factual strife. -- factional strife. >> no. let me put this worry on the table. if the potential for criminal liability is taken off the table, wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they are in office? right now, the fact that we are having this debate because presidents might be prosecuted, presidents from the beginning of time have understood 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

liability, mr. president. you can do whatever you want. i'm worried we would have a worse problem than the problem of the president feeling constrained to follow the law while he's in office. >> i respectfully disagree with that. the regime you described is the regime we have operated on under 234 years. there has not been an expectation -- >> let me ask you another question. let me ask about the clear statement line of questioning. i didn't see you argue that below. i understand you have that in your briefs but did you argue before the d.c. circuit judge about a clear statement with respect to statutes? >> yes, in our separately filed 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 the question presented. >> why? >> the court expanded the question. >> but not a different statutory interpretation. that goes to constitutional avoidance, statutory interpretation in u.s. for immunity which is a different thing. >> i think it's very close logically. to what extent does it exist in the argument is immunity exists to the extent that it grazes a great -- it raises a great constitutional question. >> that's totally circular. you used that argument to avoid constitutional questions. you are asking us a constitutional question here so it doesn't even make sense to talk about clear 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 question.

what is the argument that the president of the united states who you say 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 the person not being on notice. i don't understand why congress in every criminal statute would have to say and the president is included. i thought that was the background understanding that they are enacting a generally applicable criminal standard which applies to the president like everyone else. what is the clear statement that would be made in this context? >> under franklin, congress has to speak clearly before it interferes with the president's powers. we have an indictment here that seeks to criminalize objective context that falls within the heartland of core executive authority. >> thank y. >> thank you, counsel.

mr. dreman? >> mr. chief justice, may i please record? this court has never recognized absolute criminal immunity for any public official. petitioner claims that a former president has prominent criminal -- permanent criminal immunity for its official act unless he was first impeached and convicted. his novel theory would immunize former president's for criminal liability for bribery, treason, sedition, murder and conspiring to use a crowd to overturn the results of an election and perpetuate himself in power. such presidential immunity has no foundation in the constitution. the framers knew all too well the dangers of a king who could do no wrong. they devised a system. to check abuses of power, especially the use of official power for private gain. here the executive branch is enforcing congressional statutes

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

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

the constitution reposes in him. >> in not so distant past, certain presidents have engaged in various activities, operations, like operation mongoose when i was a teenager, and yet there were no prosecutions. why? if what you are saying is right, if it seems that that would have been right for criminal prosecution. >> justice thomas, i think this is a central question. the reason why there have not been prior criminal prosecutions is that there were not crimes. i want to explain why there are layers of safeguards that assure that former presidents do not have to lightly assume criminal liability for any of their

official acts. at the outset, there is a statutory construction principle that is applicable here. it arises when there is a serious constitutional question about applying a criminal statute to the president's act. it is not and i'm sure we will discuss this that no statute can apply to the president in his official capacity absent a designation of the president in it. but there is a principle that if there is a serious constitutional question, 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 advice from the attorney general and it would be a due process problem to prosecute a president who receives advice from the attorney general that his actions were lawful absent the kind of collusion or conspiracy that is self represented a

criminal violation, which i don't really see as being a realistic option. and if i could say one more thing because you raised the question about potential overseas taking of life and the office of legal counsel has addressed this quite specifically. there is a background principle of criminal law called the public authority exception to liability and it is read into federal law unless congress takes 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 engage in overseas 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 my friend's argument. instead, olc went through an extensive analysis on why the public authority defense would prevented from being considered a violation of law to go after a terrorist for example.

>> the court of appeals below in the decision we arreviewing said "a former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws." do you agree with that statement? >> i think it sounds tall logically true, but i want to underscore that the obligation of a president is to take care that the laws are faithfully executed. >> i think it sounds tall illogically true as well. as i read it, it says simply a former president can be prosecuted because he is being prosecuted. >> i would not suggest that that is either the proper approach in this case were certainly not the government's approach.

a prosecution does of course invoke federal criminal law. the allegations have to be presented to a grand jury. >> shortly after that statement in the court, that is what they said, but there is no reason to worry because the prosecutor will act in good faith and there is no reason to worry because the grand jury will have returned the indictment. you know how easy it is 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 not be enough in some cases. i'm not suggesting here. if those are the only protections and it is topological and that is no longer your position, you are not defending that position, why shouldn't we send it back to the court of appeals or issue an opinion making clear that that

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

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

what is important is that no public official has had absolute 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 historical circumstance that involved the two other branches potentially harassing legislators and preventing them from doing their jobs. that is why it ended up in the constitution. nothing like that ended up in the constitution for the president and that is because one of the chief concerns of the framers was the risk of presidential misconduct. they labored over this. they adopted an impeachment structure that separated 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. they wanted a political remedy in case a president was engaging in conduct that endangered the nation. he could be removed. he can't be prosecuted as a sitting president. that has been a long-standing justice department position. >>ou dispute propositions that a former president has some fo of immunity, but as i understand your argument, you do recognize that a former president has a form of special protection, namely that statutes that are applicable to everybody must be interpreted differently under some circumstances when applied to a former president. isn't that true? >> it is true because of the general principle that courts construe statutes to avoid serious constitutional questions and that has been the long-standing practice 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 aware of. if it is just a form of special protection, in other words statutes will be interpreted differently, then that is something that has to be litigated at trial. the former president can make a motion to dismiss and may cite opinions and the district court say, that's fine, i'm not bound by olc and i interpret it differently, so let's go to trial. and 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.

then the outcome is dependent on the jury, the instructions to the jury and how the jury returns a verdict. so the protection is greatly diluted if you -- 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 a 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 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 about whether that can

happen at all. >> you are arguing against the most far-reaching aspects of the argument. >> that is correct. and let me turn then to why -- >> do you agree that there are some aspec of article two presidenal power that are exclusive and that congress cannot regulate and therefore cannot criminalize? >> absolutely. >> for other official acts the president may take that are not within that exclusive power, assume for the sake of argument this question that there is not blanket immunity for those official acts, but that to preserve the separation of powers, to provide fair notice to make sure congress has thought about this that congress has to speak clearly to criminalize official acts of the president by a specific reference. that seems to be with the olc

opinions suggest. i know you have a little bit of a disagreement with that. >> justice kavanaugh, i would like to take all of those in turn because i do not think this 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 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 this out and you can incorporate it. you set unless there is a serious constitutional question. it is a serious constitutional question whether a statute can

be applied to the president's official acts, so wouldn't you always interpret the statute not to apply to the president even under your formulation unless congress had spoken with clarity? >> i don't think across-the-board that a serious constitutional question exists on applying any criminal prosecution to the president. >> the problem is the vagueness that can be used against a lot of presidential activities historically with a creative prosecutor who wants to go after a president. >> let me try to -- >> that is what we are talking about historically is the risk and going forward, the risk. you can take all of 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 executive branch, our view is that there is a balanced protection that better serves the interests of the constitution that incorporates both accountability and protection for the president. and i want to go through the protections that do exist. but perhaps it is worth returning at the outset to the statutory construction question

that you raised. the office of legal counsel has said, it does not name the president section 201 does not name the president. >> assume that is personal. that is what brewster said. >> the bribery statute in 607 says the president. i've got it in front of me. there is that. 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 that congress cannot criminalize? >> yes. >> 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's sake?

i think we are narrowing the ground of dispute. it seems to me there is some area you concede that there are official acts that congress cannot criminalize and now we are talking about the scope. >> 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 example, let's say a president leads a mostly peaceful protest sit in in front of congress because he objects to a piece of legislation that is going through. and it in fact delays the proceedings in congress. now, under 1512 c2, that might be correctly impeding an -- corruptly impeding an official proceeding. is that core and therefore immunized or whatever euphemism you want to use with that?

or is that not core and therefore prosecutable? without a clear statement that applies to the president. >> it is not core. the core kinds of activities the court has acknowledged are the things that i would run through the youngstown analysis. it is a pretty small set, but things like the pardon power, the power to recognize four nations, the power to veto -- foreign nations, the power to veto legislation, the power to make appointments. these are things the constitution specifically allocates to the president. >> so a president then could be prosecuted for the conduct i described? >> probably not but i want to explain the framework of why i don't think that that would be prosecution that would be valid. first, i think you need to run through all of the normal categories of analysis. you may well default to it does not apply.

>> that was my 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 leading a civil rights protest in front of the capital that delays a vote on a piece of important legislation? >> i think what you need to do is run through all of the very president specific layers of analysis. one is whether the statute would be construed not to apply to his conduct even if it is not part of that small core of things congress can't regulate at all. if it operates to prevent the president from fulfilling his -- >> he could have given speeches against it. he did. but he did something more and it impeded and sought to influence an official proceeding.

>> we are starting with the layers of protection and we are now down through whether the statute would be construed to apply to him. then 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 president does have access to the attorney general to provide legal advice, and regularly gets legal advice from the attorney general about the lawful scope of the president's activities. we could go down two tracks here. one is that the attorney general advises him that as an incident of his article two authority and in carrying out the functions of the presidency, he can lawfully

participate in that protest. it is kind of a first amendment analog to the president's official powers, which the court is exploring in other cases. alternatively, the attorney general could advise him, 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 you not to violate any criminal law. >> and then he can be prosecuted? >> no. >> if he gets a negative opinion from the attorney 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 then i 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 soliciting or receiving funds in any room or building.

>> that's correct. >> official building. it is a very limited convention. so, as i understand this, there are two limited provisions mentioning the president that are included. there is a whole number of provisions that exclude the president, many more that exclude the president, correct? >> it is a small number on both sides. >> justice barrett made the point that if we say a president can't be included in a criminal law unless explicitly named, then that would bar the senate from impeaching him for high crimes or misdemeanors, because that means that he is not subject to the law at all. correct? that is a tautological. >> i think what justice barrett was saying and we would agree with that is that under my friend's position after impeachment he could be prosecuted, but under his statutory construction approach there would be nothing to prosecute him for.

>> exactly, that is the point is if he is not covered by the criminal law, he cannot be impeached for violating 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 contextual, correct? >> correct. >> what are the factors we generally look at? i'm thinking about whether the apa covers the president. >> correct. >> what we did was analyze what powers were being given to in the lawsuit and etc. we look at words, structure, separation of powers issues relating to our case law that said you can't direct a president to do anything and this would have been a subterfuge for that. >> all correct. >> so i don't know why -- how they would fashion a clear

statement rule that would say when a loss says any persons -- when the law says any persons can'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 that we are highly unlikely to say that the president is an agency, something the government said would be a peculiar understanding of agency, when the effective it would be that we would review the president's decisions under statutes for abuse of discretion, which is a very extraordinary thing to do, 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, there appears to be some narrowing principles 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 subject to any laws that attempted to limit those core powers? >> that's correct. >> you are defining core powers 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 executed, correct? >> that's right. >> hard to imagine that a president who breaks the law is faithfully executing the law, rrect? >> he has to execute all of the laws. >> presidents have to make a lot of tough decisions about

enforcing the law and they have to make decisions about questions that are unsettled and they have to make decisions based on the information that is available. did i understand you to say, well, if he makes a mistake, he makes a mistake, he is subject to criminal laws just 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 is under a constitutional obligation where he is supposed to be faithful to the laws and the constitution and making a mistake is not what lands you in a criminal prosecution. there has been some talk about the statutes issued in this case. i think they are 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 a peculiarly 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 and it is difficult to think of a more critical function than the certification of who won the election. >> i'm not discussing the particular facts of this case but it applies to any fraud that interferes seriously with any government operation. >> what the government needs to show is an intent to impede, interfere, or defeat a lawful governmental function by

deception and it has to be done. these are not the kinds of activities that i think any of us would think a president needs to engage in in order to fulfill his article two duties and in particular a case like this one. i want to pick up something the court said earlier about a public official acting to achieve public ends. and a public official acting to achieve private ends. as applied to this case, the president has no functions with respect to the certification of the winner of the presidential election. it seems likely that the framers designed the constitution that way because at the time of the founding presidents had no two term limit, they could run again and again. they were expected potentially to want to do that. the potential for self-interest 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 extraordinary joint session certifies the vote. the president doesn't have an official role in that proceeding. it is difficult for me to understand how there could be a serious constitutional question about saying you can't use fraud to defeat that function, you can't obstructed through deception, you can't deprive millions of voters of their right to have their vote counted for the candidates who they chose. >> thank you, counsel. justice thom? justice alito? >> could we just briefly review the layers of protection you think exists? i'm going to start with what the d.c. circuit said. the first layer of protection is that attorneys general and other justice department attorneys can be trusted to act in a

professional and ethical manner. >> yes. >> how robust is that protection? the vast majority of attorneys general and justice department attorneys and we both served in the justice department for a long time are honorable people and they take their professional, ethical responsibilities seriously, but there have been exceptions both among attorneys general and federal prosecutors. >> there have been rare exceptions, justice alito, but when we are talking about layers of protection, i do think this is the starting point and if the courts have concerns about the robustness of it, i would suggest looking at the charges in the case. >> i'm going to talk about this in the abstract because what is

before us does involve this particular case, which is immensely important, but whatever we decide will apply to all future presidents. as for attorneys general, two have been convicted of criminal offenses 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 general who did not and in departments of justice staffed by multiple people would do adhere to their office. justice alito, the point i wanted to make about this case does go to the general proposition. the allegations about the misuse of the department of justice to perpetuate election fraud show exactly how the department of justice functions in the way that it is supposed to. petitioners alleged to have tried to get the department of justice to send fraudulent letters to the states to get them to reverse electoral results. >> i understand that. but as i said, this case will have effects that go far beyond this particular prosecution.

so moving on to the second level of protection that the d.c. circuits cited. federal grand juries will shield former presidents from unwarranted indictments. how much protection is that? >> it affords two levels of protection. one is the probable cause finding requires evidence. some of the fears about groundless prosecutions aren't supported by evidence and they are not going to get out of the starting gate. >> there is the old thought about indicting a ham sandwich. you had a lot of experience in the justice department. you come across a lot of cases where the u.s. attorney or another federal prosecutor really wanted to indict a case in the grand jury refused to do so? >> there are such cases. yes.

>> once and a while, there is an eclipse too. [laughter] >> for the most reasons prosecutors have no reason to bring a case to a grand jury and secure an indictment where they don't have evidence to prove guilt under reasonable doubt. it is self-defeating. >> the third is that they enjoy all the protections afforded all criminal defendants. that may be true at the end of the day but a lot can happen between the time when an indictment is returned and the time when the former president finally 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, it is baked into the constitution that any president knows that they are exposed to potential criminal prosecution. it is common ground that all former presidents have known that they could be indicted and convicted. and watergate cemented that understanding.

the watergate smoking gun case involved president nixon and h.r. haldeman talking about and then deciding to use the cia to give a bogus story to the fbi to shut down a criminal investigation. >> mr. saur and others have identified events in the past were presidents have engaged in conduct that might have been charged as federal crimes and you say, that is not really true and this is page 42 of your brief. so, what about president franklin d. roosevelt decision to intern japanese americans during world war ii? couldn't that have been charged conspiracy against civil rights? >> today, 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 thought there was really no threat of sabotage, as did j. edgar hoover? >> there is a lot of historical controversy. that occurred during wartime and it implicates a potential commander-in-chief concerns, concerns about the exigencies of national defense that might provide an as applied article to challenge at the time. i'm not suggesting today. but the idea that a decision that was made and was endorsed by the court perhaps wrongly would support criminal prosecution under 241 which

requires united states v. lanier that it had been made specific so there is notice to the president. >> we could go through other historical examples, i won't do that. let me touch briefly on 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 lawful, is that an absolute defense? >> yes, i think that it is under the principle of entrapment. this is a due process doctrine that we referred to in our brief. we cited authority of this court that if an authorized government representative tells you that what you are about to do is lawful, it would be a root violation of due process to prosecute you for that. >> won't that give presidents incentive to be sure to pick an attorney general who will reliably tell the president that it is lawful to do whatever the

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

speaking in your capacity solely as a member of the special 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 at least two the justice department's position on that issue in order to decide this case? because if a president 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 predictable result be that presidents in the last couple days of office will pardon themselves from anything they might have been conceivably charged with committing? >> i really doubt that, it presupposes a regime we have never had except for president nixon and as alleged in the indictment here. presidents who are conscious of

having engaged in wrongdoing and seeking to shield themselves. the political consequences of a president who asserted a right of self pardon that has never been recognized that seems to contradict a bedrock principle of our law that no persians shall be the judge 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 functioning of a stable democratic society? which is something that we all want. i'm sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully, if that candidate is the incumbent.

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

all but one that was not outcome determinative in any respect. there were judges that said in order to sustain substantial claims of fraud that would overturn an election result that is certified by a state, you need evidence, you need proof, and none of those things were manifested. there is an appropriate way to challenge things through the courts with evidence, if you lose, you accept the results, that has been the nation's experience in the court is well familiar with that. >> thank you. >> justice sotomayor. >> a stable democratic society needs the good faith of its public officials, correct? >> absolutely. >> that good faith assumes that they will follow the law. >> correct. >> putting that aside, there is no failsafe system of government. meaning, we have a judicial system that has layers and

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

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

>> pardon power. >> veto. >> veto. >> foreign recognition. appointments. congress cannot say you cannot appoint a federal judge who hasn't received a certain diploma or hasn't achieved a certain age. there are a few other powers. >> is commander-in-chief? >> commander-in-chief is on the list, but i want to add to my answer on that that congress has substantial authority in the national security round. it declares war, raises the army. >> that may be viewed in the set of functions that nobody has it over. >> now in the next category where we have left the core set behind and we are in the world of official actions where you say there are various statutory construction rules that might come into play. could you have characterized those as something different

from saying the statute doesn't say the president therefore it doesn't apply to the president? >> that's right. >> i wanted to give you an opportunity to say how that would look, how that analysis would look in a given case and in the course of responding to that, i'm sort of thinking of something like the olc opinion, which says bribery, the president can be tried and convicted of bribery, why is that true? >> that is true because there is no serious constitutional question that the president needs to engage in bribery to carry out constitutional functions.

bribery is in the impeachment clause so it falls outside of anything that could be viewed as inherent in the need of article two to function. >> do you think the premise of that olc opinion was that bribery was simply not official or is the premise that the bribery was official and still the president could be prosecuted for? >> i think bribery is a kind of hybrid that illustrates the abuse of public office for private gain that we think our things that should be not held to be immune. the public official cannot extract the bribe without the official power to offer as quid or pro. i guess the quo actually. it is a crime that can only be committed by public officials who misuse their power. it is one of the things that was most mistrusted. many of the acts charged in this indictment or that would violate criminal law involve the misuse of official power for private

gain. >> so if you were to say what the line is in this category, like when it is that the statute should be understood as precluding presidential prosecution and when it is that the statute should be understood as allowing it, what general 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 federal judges. it cannot be presumed that congress intended to do that because it would raise a serious constitutional question. then there are categories of statutes where the president is in. like the grassroots lobbying statute. the olc wrote an opinion about

that and it said for the president or other public officials to go out into the world to promote their programs, that can't be what congress intended to prohibit. what 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 said the president and officials who carry out the president's mandates are subject to that statute so that is a more nuanced one. and those are the examples that i will give you. the third is the statute that would permit prosecution for contempt of congress. the olc concluded that a good faith assertion of executive privilege as a reason for not providing information to congress would preclude prosecution because congress cannot be deemed to have altered the separation of powers in such a manner. i think olc would have probably gone on to say of congress tried to do it, it would be deemed unconstitutional. but this was a statute that did not specifically name the

president. there are only two that do that. so the entire corpus of federal 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 can be carved out individually? 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 board in such a wide range of applications, somewhat analogous to overbreadth analysis, infringe on the president's powers so we can say that? >> that set of issues seem important and may be difficult occasionally.

they also seem not really before us in the way justice jackson suggested earlier. do you think they are before us and we should clear it up, here it is? what else could we do? how could we deal with this? whether or not there is this absolute immunity. >> i think the court has the discretion to reach that issue. it was not raised in the district court and it was not raised in the court of appeals. the analysis i would use to get there is a fusion of a couple of principles. the court has often resolved threshold questions that are a prerequisite to an intelligent resolution of the question presented. in a case like united states versus grubbs, the court reached out to decide whether

anticipatory warrants are valid under the fourth amendment before turning to the question of whether the triggering condition for an anticipatory warrant had to be in the warrant. that is one principle. and then a precedent that bears some analogy to this is vermont natural resources agency v. united states. the first question was whether a state agency was a person within the meaning of the act and the second question was whether if the state agency was 11th amendment immunity kicked in, and the court wrote an analysis of why it could reach both questions. reaching the person question did not expand jurisdiction and it made sense as a matter of constitutional avoidance to do that. there are considerations that cut against this. for overall government equities, 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 approach to that issue. but the final thing that i would say about this is part of our submission to this court is that the article one branch and the article two branches are aligned in believing that this prosecution is an appropriate way to enforce the law. congress by making the law, the current executive by deciding to bring it. it is a building block of that submission is that congress actually did apply these criminal laws to official conduct, the court may wish to exercise discretion to resolve that issue. >> i have one last set of questions which has to do with the official unofficial line. you heard mr. sour's responses to justice barrett's questions and my questions about what he

thinks counts as official here and what he thinks is unofficial here. i'm wondering what you took from his responses and also how you would characterize what is official and what is not official in this indictment. >> so, i think petitioner conceded that there are acts that are not official that are alleged in the indictment. we agreed on all of that. i disagree with him on everything else about what he said as official and what is not. organizing fraudulent slates of electors, creating false documentation that says i'm an elector, i have been appointed properly, i'm going to send a vote to congress that reflects that petitioner won rather than the candidate that actually got the most votes and it was ascertained by the governor and his electors were appointed to cast votes, that is not official conduct. that is campaign conduct and i think that the d.c. circuit

judge case did draw an appropriate distinction. a first-term president running for reelection can act incapacity of office seeker or officeholder. when working with private lawyers and in private-public relations advising to gin up fraudulent slates of elections, that is not part of a president's job. >> there is an allegation in the indictment that has to do with the removal of a justice department official. is that core protected conduct? >> we did not think that is core protected conduct. i don't think i would characterize that episode quite that way. we do agree that the department of justice allegations were a use of the president's official power. in many ways, we think that aggravates the nature of this offense. seeking as a candidate to oust the lawful winner of the

election and have oneself certified with private actors is a private scheme to achieve a private and read for an incumbent president to use his presidential powers to try to enhance the likelihood that it succeeds makes the crime in our view worse. in the department of justice episode, this occurs late in the election cycle after many other schemes have failed. at that point, the petitioner is alleged to have tried to pressure the department of justice to send false letters to the states claiming there were serious election regularities and they should investigate who they certified. none of this was true. the department of justice officials all said this was not true, we are not going to do that. at that point, petitioner is alleged to threaten to remove the department of justice officials who are standing by their oath and replace them with another person who would carry it out. we are not seeking to impose

criminal liability on the president for exercising or talking about exercising the appointment and removal power. what we are seeking to impose criminal liability for is a conspiracy to use fraud to subvert the election, one means of which was to try to get the justice department to be complicit. the case would have been no different if petitioner were successful and he had actually exercised 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 that relate to the question we are asking here? >> this is one of the most difficult questions for the department of justice and i want to explain why that is. if we are operating under a fitzgerald versus nixon lens and looking at this the way we look at things when there is a

private lawsuit filed against the president, we take a very broad view of what the outer perimeter of official presidential action is in order to be as protective of the president against private lawsuits that as the court explained in nixon versus fitzgerald can be very deleterious to the president's conduct of business. if we were putting this under a fitzgerald lens, we would have to answer the question, was he acting incapacity is office seeker or was he acting in the capacity as officeholder? if you run through the indictment, you can find support for those two characterizations and the department of justice has not yet had to come to grips with how we would analyze that set of interactions. >> thank you. >> justice gorsuch? >> i wanted to confirm i thought i heard that you thought that 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 reasonable to view the activities as those of officeholder, then the fitzgerald immunity kicks in. i think we would look more at the content of the actual interaction in order to make that determination than blasingame suggested on the facts 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 might be appropriate? i'm trying to understand the nuance. >> blasingame, a generally very favorable, pro-government framework that we endorse. >> i would have thought. >> not here, because we don't think fitzgerald applies. >> i understand that, but putting that aside, the distinction between official act and private office seeker, their

test is you think good enough for government work? >> on this one, the department hasn't taken a next step since the blasingame decision, but let 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 by looking at what the president actually said. let me illustrate that with an allegation, briefly. in one of the interactions between petitioner and a state official, 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, it'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 the legal tests. i'm not hearing any exceptions to it. >> 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 the core immunity or whatever word we use, it seems to me we are narrowing the ground of dispute here considerably. do we look at motives, the president's motives for his actions? i mean, for example, he has lots of war powers, as we discussed, but he might use them in order to enhance his 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 motive in the sense that your honor

suggests. i think there is a lot of concern about saying electoral -- and electoral modem to be reelected. every first-term president, >> -- >> every first-term president, everything he does can be seen through the prism by critics, at least, of his personal interest in reelection. so you wouldn't want that, i think you would say, personal motivation is off limits with respect to the core powers. >> probably, with respect to the core powers, we think there are things -- they are things that can't be regulated 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 appointee -- first of all, maybe ask this first. is removing an appointee, a presidential appointee, a core power or noncore power? >> here, i might need to

differentiate between the principal officers, like myers, that have been regarded as having a constitutional status of being removable at will from inferior officers were congress does have some regulatory latitude to impose restrictions on removal. >> sure. let's put that aside. i understand that. >> putting that aside, appointing a principal officer is a core power. i'm not prepared to say that there is no potential criminal regulation, to say you can't do it for corrupt purposes to enrich yourself, for example. >> bribery, all right. 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

department 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 so much as future ones, too -- these noncore powers and maybe core powers were a president is acting with at -- where a president is acting with at least part personal interest in getting reelected, everything he does he wants to get reelected. if you are allowing in motive to color that, i'm wondering how much is left of either the core or noncore powers. >> i would be fine with carving that out and deeming that to be something that is intrinsic in our electoral system. we are not talking about applying criminal law to somebody who makes an announcement that this program will be good for the united states and somebody could come along and say, well, you really did it to get reelected.

leaving aside whether any event -- whether any of that violates a criminal law, let's assume that it does. i'm doubtful that it does because i don't think criminal laws generally operate on motives as opposed to objectives and purposes. >> intention aside, intention is a motive and a motive is an intention, leave that aside. >> putting that aside, that really to me falls in a very different category, and it is also -- >> there are some motives that are cognizable and others that aren't. i mean, it is awkward when we look back at the injunction of the early cases. you can't enjoin a president. you couldn't hold him in contempt. for sure. >> can i try one more time to clarify? >> spin this out just a second.

it didn't matter what the president's motives were, we are not going to look behind it. same thing with nixon. we said, gosh, nixon versus fitzgerald, that is something courts shouldn't get engaged in because presidents have all manner of motives. and again, i'm not concerned about this case, but i am concerned about future uses of the criminal law to target political opponents based on accusations about their motives. whether it is reelection or who knows what corrupt means in 1512 -- we don't know what that means. maybe we will find out sometime soon. but the dangerousness of accusing your political opponent of having bad motives, if is -- if that is enough to overcome your core powers or any other limits, reactions, thoughts? >> yeah, i think you're raising a very difficult question. >> that is the idea. >> that is the idea. >> testing the limits of both side arguments. >> and i'm going to say

something i don't normally say, which is that is really not involved in this case. [laughter] we don't have bad political motive, in that sense. >> i appreciate that, but you also appreciate that we are writing a rule for the ages. >> i think i would start by looking at the statutes. seeing what restrictions they do place on the president's conduct. for example, the statue that prohibits fraud to defeat the lawful function of the united states. the statute defines what the purpose is that the defendant has to have in mind. it has to be to defeat something that the united states is doing and it has to be by deception. i don't think that gets us into the realm of motive-hunting in the area where we are as concerned as the corporately -- as the court would be about doing something that would undermine the presidency and the executive branch. and 1512 c2, we may have different views on the clarity and the scope of that statute.

i think of the court -- if the court does interpret corrupt as involving a consciousness of wrongdoing and elevates that the consciousness of illegality, and we are in a different realm. -- then we are in a different realm. wanting to get reelected is not an illegal motive and you don't have to worry about prosecuting presidents for that. >> thank you. >> justice kavanaugh? >> as you've indicated, this case has huge implications for the presidency, and the future of the presidency, for the future of the country, in my view. you have referred to the department a few times as having support of the position. who in the department? the president, the attorney general? >> solicitor general the united states. part of which the way in which the special counsel functions is as a component of the department of justice, the regulation and vision, that we reach out and consult, and on a question of this magnitude that involves equities that are far beyond this prosecution, as the questions of the court. >> so the solicitor general.

>> yes. >> second, like justice gorsuch, i'm not focused on the hearing -- here and now now of this case. i'm very concerned about the future. i think one of the court's biggest mistakes was orson vs. olson. i think that was a terrible decision for the presidency and for the country. and not because there were bad people who were independent councils, but president reagan's ministration, president bush, president clinton's were really hampered, in their view, all three, by the independent counsel structure. and what i'm worried about here is that, let's relax article two a bit for the needs of the moment. and i'm worried about a similar kind of situation applying here. that was a prosecutor investigating a president in each of those circumstances,

someone picked from the opposite party, current president, usually was how it worked. justice scalia wrote the fairness of a process must be judged on the basis of what it permits to happen, not what it produces in the particular case. you've emphasized many times regularity of the department of justice. and he said, and i think this applies to the independent counsel system and can apply if presidents are routinely subject to investigation going forward. one thing is certain, however, it involves investigating and perhaps prosecuting a particular individual. can one imagine a less equitable manner of fulfilling the responsible is possibility to prosecute? what would the reaction be if in an area not covered by the statute, the justice department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? does this not invite what

justice jackson described as picking the man and inserting the -- and searching the law books or putting investigators to work to pins and effects on him? to be sure the investigation must relate to the area criminal offense testified by the statute. nothing prevents it from being very broad. i paraphrase at the end because i am referring to the judges. that is the concern going forward, is that the system when former presidents are subject to prosecution, it tells us is not going to stop, it's going to cycle back and be used against the current or next president and the president after that. all that, i want you to try to allay that concern. why is this not morrison v. olson redux if we agree with you? >> first of all, the independent counsel regime did have many structural features that emphasized independence at the

expense of accountability. we don't have that regime now, but even under that regime, i think if you looked at lawrence walsh's report on iran contra, i think it goes to a very fundamental point for the court to consider. judge walsh said, i investigated these matters, the proof did not merely come close to establishing criminal violation. so we have lived from watergate through the present, through the independent counsel era, without these prosecutions having gone off on a runaway train. with all its flaws. >> i think president reagan, bush, and clinton whether rightly or wrongly thought contrary to what you just said. >> i think nobody likes being investigated for a crime, but it didn't result in the kind of vindictive prosecution that i think your honor is raising. we have a different system now. i think there was a consensus throughout washington that there were flaws in the independent counsel system.

if lapsed, we now are inside the justice department with full accountability resting with the attorney general, so the special counsel regulation now doesn't operate the way that the independent counsel regulations do. and this court would have something to say about it, i think, if the statute were revived. i'm not sure anybody is in favor of that. >> i was saying this is a mirror image of that, is one way someone could perceive it. but i take your point about the different structural protections internally. like justice scalia said, i do not mean to suggest anything of the sword the present case, we are not talking about the present case. i'm talking about the future. another point, you talked about the criminal statute. it's very easy to characterize presidential actions as false or misleading under vague statutes. so, president lyndon johnson,

statements about the vietnam war, say something is false. it turned out to be false that he says about the vietnam war. -- what he says about the vietnam war. 371 prosecution after he leaves office? >> i think not. this is an area that i do think merits some serious and nuanced consideration. statements that are made by a president to the public are not really coming within the realm of criminal statutes. they've never been prosecuted. i realize that the court can say what if they were? and then i think you get to what i would regard as a hard constitutional question. i would probably guide the court away from trying to resolve today, although i do think it is very different from our case and in distinguishable and important ways. but you are dealing here with two branches of government that have a paramount interest in the integrity and freedom of their interactions with each other. on the one hand, the president of course should be very free to

send, usually, his cabinet officials and subcabinet officials to congress to provide them with the information needed to enact legislation and to make national policy. and we are very concerned about anything that would trample that. on the others the -- on the other side of the equation, congress has a compelling interest in receiving accurate information and at the very least, information that is intentionally and knowingly false. that would pollute -- >> how about president ford's pardon? very controversial in the moment. >> yes. >> hugely unpopular, probably why he lost in 1976. >> yes. >> now looked upon as one of the better decisions in presidential history, i think, by most people. if he is thinking about, if i grant this pardon to richard nixon, could i be investigated myself for obstruction of justice on the theory that i'm interfering with the

investigation of richard nixon? >> so this would fall into that small core area that i mentioned to justice kagan and justice gorsuch of presidential responsibilities that congress cannot regulate. >> how about president obama's drone strikes? >> the office of legal counsel looked at this very carefully and determined that, number one, the federal murder statute does apply to the executive branch, the president would be not personally carrying out the strike, but aiding and abetting laws are broad and it is determined that a public authority exception that is built into statutes and that applies particularly to the inverter statute talks about unlawful killing did not apply to the drone strike. so this is actually the way that the system should function. the department of justice takes criminal law very seriously. it runs through the analysis very carefully with established principles. it documents them, explains them, and then the president can go forward in accord. -- in accordance with it.

and there is no risk of prosecution for that course of activity. >> thank you for your answers. justice barrett. >> i want to pick up with that public authority defense. i'm looking at that llc memo that david baron wrote that you cited in your briefs. he describes the public authority defense setting the -- citing the model penal code with a few different definitions, but i will just highlight this one. justifying conduct which is required or authorized by the law, defining the duties or functions of a public officer, the law governing the armed services or lawful conduct of war, or any other provision of law imposing a public duty. that sounds a lot like dividing a line between official and private conduct. i think it is narrower and i recognize it is in his defense, not immunity. but when we look at the definition of it, are you acting within the scope of authority conferred by law, discharging a duty conferred by law? i think it is narrower than lesson game -- blasengame, nixon

and fitzgerald, that is what it sounds like to me. do you agree or disagree? >> i certainly understand the intuition that when you act outside of your lawful authority, you kind of been no -- you kind of are no longer carrying it out. i don't think that that quite works for presidential activity. the only way he could have implemented the orders is by exercising his commander-in-chief authority over the armed forces or his authority to supervise the executive branch. those seem like poor executive asked to be. -- core executive acts to me. there is such a possibility as an unlawful executive act. >> i'm not sure i understand your answer. it seems to me that in your brief today, when you referred to the public authority defense, you said that is one of the built-in protections of why immunity is not necessary. because in some of these instances, when the president takes such action that the court has been asking, might this result in criminal

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

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

and i have a little bit of difficulty with the idea of trying the whole public authority issue separately to the judge and having that go up on interlocking tori appeal before you could get into a criminal case. that said, i would rather that , a regime in which the court alters some of the procedural rules surrounding the president, then a total absolute blanket immunity that takes away the possibility of criminal prosecution, even if it is a core violation of the statute of attorney general advice and has no overriding public authority. >> you think it has to be a jury question? i wasn't necessarily proposing actually treating it as a defense that was going to be done at the outset and subject to appeal, i was proposing what

about and immunity doctrine a true from the public authority defense of the department of justice that they think would otherwise apply? so just go with me on that for a minute. why would it be so bad for it not to be a jury question? it seems to me some of these article two concerns would be exacerbated by having it go to a jury rather than a judge. >> i think some of them are judge questions that could be resolved in the face of the indictment. if the department of justice ever returned an indictment that said the issuance of this pardon or this series of pardons constituted obstruction of justice, i have a little difficulty hypothesizing it, but a motion to be made on the face -- could be made on the face of indictment that says article two includes congress from regular things activities, the indicted needs to be dismissed. if the court wished to attach to that kind of a rule interlocutory appeal, that would be a lesser safeguard than the one that my friend is proposing here. other kinds of defenses really do intersect with the general

issue, and for those i have a much greater time seeing how the courts could implement that. and would there be cost going to trial? yes, there is no perfect system here. we're trying to design a system that preserves the effective functioning of the presidency and the accountability of a former president under the rule of law. and the perfect system that calibrates all of those values probably has not been devised. i think that the system that we have works pretty well, maybe it needs a few ancillary rules. it is different from the radical proposal. >> i agree. that me ask you about state prosecutions, because if the president had some kind of immunity that is implicit in article two, then that immunity would protect him from state prosecution, as well. a lot of the protections you are talking about are internal protections that the federal

government has, protections and the partner justice which obviously are not applicable at the many state and local jurisdictions across the country. what do you have to say to that? >> that brings in the supremacy clause issue. the court would run a supremacy clause analysis that would probably start with basic principles, like mcculloch versus maryland. the states do not have the authority to bird and federal functions and then would kind of move through and re-nagel where the court said that a state murder prosecution of a federal official guarding the supreme court justice and who fired a shot was not permissible. if the court thought that you needed a more categorical rule for the states, i think the supremacy clause certainly leaves it within the court's prerogative to determine that the president, unlike all other officials, deserves more of a robust federal defense than what i have just devised. >> but it would still be a defense in the states. that is my point.

it is one thing to say the president, they are not going to be these prosecutions that were politically motivated that might be the danger of the system. what justice kavanaugh was referring to. that might not carry the day, but that is a concern. it is totally different when you take it outside the department of justice and its structures and then you throw it out elsewhere. the idea across the states, the idea of an immunity i think has a lot more purchase if you are talking about something that protects the former president from standing trial at a state and local level. >> so, i don't know that you would have to design a system in which the president would have to stand trial at the state and local level. it is certainly within the court's authority as a matter of supremacy clause law to find and immunity. -- find an immunity. but we have been talking here about to some length the distinction between official acts and private acts. >> yeah. >> that will have to be determined by some sort of a process. any immunity defense that the

court announces can still be met by a state assertion that we are prosecuting private conduct, you are going to have to have some process. i think having some legal process is not a reason to cast aside a nuanced system that actually looks at what protections are necessary as opposed to what would provide the absolute maximum insulation for former presidents, even if we acknowledge that it is highly prophylactic. >> totally agree, and i wasn't contrasting the absolute immunity rule, but saying if there is some sort of official private, the consequence of making immunity. and since you brought up the private act, this is my last question. i had asked on page 46 and 47, you say even if the court were inclined to recognize some immunity for a former president's official acts, the indictment alleges substantial private conduct and you said that the private conduct would be sufficient.

>> yes. >> the special counsel has expressed some concern in speed and wanting to move forward. the normal process would be for us to remand, if we decided that there were some official acts of immunity and to let that be sorted out below. it is another option for the special counsel to just proceed based on the private conduct and drop the official conduct. >> well, two things on that. first of all, there's really an integrated conspiracy here that had different components as alleged in the indictment. working with private lawyers to achieve the goals of the fraud, and as i said before, reaching -- the petitioner reaching for official powers to try to make the conspiracies more likely to succeed. we would like to present that as an integrated picture to the jury so that it sees the sequence and the gravity of the conduct and why each step occurred. that said, if the corporate to -- if the court were to say that

the elector scheme is private, reaching out to state officials as a candidate is private, trying to exploit the violence after january 6 by calling senators and saying please delay the certification proceeding is private campaign activity, we still think contrary to what my friend said that we could introduce the actions of the justice department, the efforts to pressure the vice president for their evidentiary value as filling the defendant's knowledge and intent and we would take a jury instruction that would say, you may not impose criminal culpability for the actions that he took, however, you may consider it insofar as it bears on knowledge and intent. that is the usual rule with protected speech, under wisconsin v. mitchell for example. my friend analogize this as a speech for debate clause but we don't think the speech for debate clause has any applicability here. it is a very explicit constitutional protection that says senators and representatives shall not be

questioned in any other place, so it carries an evidentiary component that is above and beyond whatever official act immunity he is seeking. and the last thing i would say on this, we think that the concerns of the use of evidence of presidential conduct that might otherwise be official and subject to executive privilege is already taken care of by united states v. nixon. that balances the president's interests and confidentiality against the need of the judicial system for all available facts to get to the truth, and once that has been overcome, we submit the evidence can be used even if culpability can't rest on it. >> thank you. >> justice jackson. >> just to pick up where justice barrett left off, i think i heard you say that even if we decide here's something, a rule that is not the rule that you prefer, that is somehow separating out private from acts -- private from official acts and saying that that should apply here, there is sufficient allegations in the indictment, in the government's view, that fall into the private acts

bucket that the case should be allowed to proceed, correct? -- to proceed? >> correct. >> because in an ordinary case, it wouldn't be stopped just because some of the acts are allegedly immunized, even if people agree that some are immunized.

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

i guess i'm just trying to get that we are avoiding a constitutional question if we do that in the ordinary case, and what is confusing to me about this case is that we are not being asked to avoid the constitutional question. in fact, the question of whether or not a president can be held liable consistent with the constitution or does he have immunity is the question that is being presented to us. so i don't understand how the clear statement kind of analysis even works. it seems completely title logical to me for us to all the presidents cannot be prosecuted under any criminal statute without a clear statement from congress to avoid the question of whether or not the constitution allows them to be prosecuted. you have to have a reason, right? you have to have a rationale for

applying the clear statement rule. >> there would have to be some rationale that is not evident in either the existing doctrine or the text. just one data point for the court in thinking about how the clear statement rule works, a case about gratuities and the court is probably familiar with, justice scalia wrote an opinion for unanimous court in which he used a hypothetical about what would happen if the president received a sports replica jersey at a typical white house event, would that violate section 201c? the court offered a construction that it had to be because of an official act to avoid that problem. i think if there was such a well-received understanding that presidents are not included in general federal criminal law unless a president is specifically named, which he is not, justice scalia would have thought of that and some member of the court would have reacted. and none did. >> let me go on to ask about what you take the partition's

position to be in this case. because we had a lot of talk about drawing the line, justice kavanaugh, justice gorsuch suggested that we should be thinking about first, we have private vs. official. and then within official we have some thing that core acts vs. other acts as we try to figure out at what level the president is going to have immunity. but i took the petitioners argument in this case not to be inviting us to engage in that kind of analysis. i thought he was arguing that all official acts did immunity, -- get immunity, and so i didn't understand us to be having to drill down on which official acts do. so my question is why isn't it enough for the purposes of this case, given with the petitioner has argued, to just answer the

question of whether all official acts get immunity? >> that is enough and if the court answered that question the way that the government has submitted, that resolves the case. i want to make a clarification that i may have left the court with some uncertainty about. the official act analysis that my friend is talking about is the fitzgerald vs. nixon out of perimeter test which is extremely protective of the president. it is saying that everything the president does is a target for lawsuits. that is not a great thing and therefore they are all cut off. >> anything that is official in the outer perimeter is not subject to liability. so we don't have to then go well, we have an official, which within that might be subject to liability? not on the theory of absolute immunity. >> neither on the theory of

absolute immunity or on our theory. on his theory, everything is protective. on ours, there is no immunity but this is where i've detroit -- where i have drawn the distinction. there is application of constitutional challenges that you run through the youngstown framework and this court's customary method of analysis and you determine whether there is an infringement of article two. >> so what you're saying is even if we reject the absolute immunity, it is not as though the president doesn't have the opportunity to make the kinds of arguments that arise at the level of this particular act or this particular statute as a problem in retrospect? i think i hear you saying we should not be trying to, in the abstract, set up those boundaries ahead of time as a function of the blanket immunity to allow each allegation to be brought and then you would decide in that context? >> yes, with the additional note that petitioners never made that argument and think it would be

up to a district court to decide whether to go that route at this point in the litigation. you have put all of his eggs in the absolute immunity basket. >> and if we see the question presented is broader than that and we do say let's engage with core official and not core and try to figure out the line, is this the right vehicle to hammer out that test? i mean, i had understood that most if not all of the allegations here, there's really no plausible argument that they would fall into core vs. not such that they are immune. >> we don't think there are any core acts that have been alleged in the indictments that would be off-limits as a matter of article two. >> so if we are going to do this kind of analysis, try to figure out what the line is, we should probably wait for a vehicle that

actually presented in a way that allows us to test the different sides of the standard that we would be creating, right? >> i don't see any need in the -- this case the court to embark on that analysis. >> the final set of questions that i have has to do with what i do take as a very legitimate concern about prosecutorial abuse, about future presidents being targeted for things that they have done in office. i take that concern, i think it is a real thing. but i wonder whether some of it might also be mitigated by the fact that existing administrations have a self-interest in protecting the presidency, that they understand that if they go after the former guy, soon they are going to be a former guy and they will have created precedent that will be problematic. so i wonder if my comment on whether some of the caution from the justice department and the prosecutors and whatnot comes from an understanding that they

will soon be former president as well. >> absolutely, and i would locate this as a structural argument that is built into the constitution itself. the executive branch, as this court knows, as executive branch -- has executive branch interests that at times asserts in opposition to congress, so that the proper functioning of the president is protected, and i believe that that value would be operative and use operative in anything as the mentis discharging a former president with a crime. >> and i would also say i think in ask you to comment, presidents are concerned about being investigated and prosecuted, and it chose to some extent their ability to do what they want in office. that is a concern on one side. but can you comment on the concern about having a president unbounded while in office? a president who knows that he

does not ultimately have to follow the law because there is nothing more than political accountability in terms of impeachment? we have amicus briefs from professor lederman who says the president would not be prohibited by statute from perjuring himself under oath on official matters, from corrupting or concealing documents to prevent them from being used in official proceeding, from supporting others to commit perjury, bribing witnesses or public officials. he goes on and on about a president in office with the knowledge they have no criminal accountability would do. i see that as a concern that is at least equal to the president being worried, so worried in his ability to function. so could you please talk about those competing concerns? >> justice jackson, i think it

would be a change that no president has had or has needed. i think we have also had a perfectly functioning system that has seen occasional episodes of presidential misconduct. the nixon era is a paradigmatic one. the indictment in this case alleges another. for the most part, i believe that the legal regime and the constitutional regime that we have works, and to alter it poses more risks. >> thank you. rebuttal? >> i have nothing further, y use details about today's oral arguments is jimmy hoover. they see national law journal's supreme court reporter. jimmy hoover was at the court today. what is former president trump's legal team arguing here? >>