Also, a concession that a president can be criminally prosecuted
for an official act because presidents can be impeached for
official acts.
Kind of those unique circumstances,
correct? But given that you're conceding that presidents can be
criminally prosecuted
under certain circumstances, doesn't that narrow the issues before us
to? Can a president be impeached?
I'm sorry, can a president be prosecuted
without first being impeached and convicted?
All of your other arguments seem to fall away.
Your separation of powers arguments fall away.
Your policy arguments fall away if you concede
that a president can be criminally prosecuted under some circumstances,
so agree with that. The Constitution in the Article 2
Section Law investing flaws as interpreted very clearly by Chief
Justice Marshall Morburg against Madison,
says Article Three boards lack jurisdiction to engage in examination
of the president's official acts.
That's when reaffirmed that that Article 3 court can do
so if he's been impeached and convicted.
Constitution makes a carefully balanced,
explicit exception to that principle in the impeachment judgment clause.
So the problem for the separation of powers,
the Constitution does this in many other situations where it
engages in a balancing.
What the framers were most concerned about was not the
notion the president would never be prosecuted for things that
outrageous political opponents.
What they were concerned about was politically motivated prosecutions.
But they didn't say the president can never be prosecuted.
They set up the separation of powers and then created
a very narrow exception that would allow prosecution in those
cases.
But once you concede that there's not this absolute immunity
that the judiciary can hear criminal prosecutions
under any circumstances, you're saying there's one specific circumstance,
then that means that there isn't this absolute immunity that
you claim.
I'm not aware of any case or constitutional doctrine that
would say the Constitution sets up a very strong principle
and it creates a very narrow exception and therefore the
exception just
makes the the the the principle vanish.
I I just disagree. That's not what I'm I'm
I'm asking you. I'm saying that you're coming before us
and saying that there is this
absolute immunity that is grounded in the separation of powers
that the judiciary can never sit in judgment on what
the president is doing.
But you're conceding that that's not true because under some
circumstances the judiciary can do that.
That's all I'm saying. I think that repeat and answer
which isn't There's a very strong principle in the separation
of pivots global three courts from sitting in judgment over
appeals has official acts. There's a very narrow exception for
conviction after impeachment.
I understand that's in a position.
It just seems to me that if once you concede
that presidents can be prosecuted
under some circumstances, your separation of powers argument falls away
and the issues before us are narrowed to are you
correct in your interpretation of the impeachment judgment clause?
Does the impeachment judgment clause actually
say what you you say it says?
That's that's all That's really we need to decide.
I respectfully disagree with that.
There is a strong principle.
It's reinforced by Chief Justice Marshall in Marburg against Madison.
He didn't say we can never sit in judgement over
a president's official acts,
but because it could be convicted,
therefore we can do it whenever we want to.
He said the exact opposite.
He says they are never,
they are never examined by the courts.
So that's answering the larger question about whether there's presidential
immunity from criminal prosecution for official acts or are we
looking to a standard on a motion to dismiss which
says look to the allegations,
take those as true, and then look to whether or
not we should be looking at official acts?
In that lens, actually both threshold Russian race
District Court judgments. Essentially, there's no such thing as
criminal immunity for a former president and therefore the District
Court never reached the second issue,
which is actually look at the face of the indictment.
Are these all official acts?
We have strong arguments on both of those things.
The notion that criminal immunity for a president doesn't exist
as a shocking holding it would authorize.
For example, the indictment of President Biden in the Western
district of Texas after he leaves office for mismanaging the
border allegedly and let a Texas jury and Texas judge
sit in judgment over the validity of his tax respect.
Earlier. That when there were pardons or when people were
not prosecuted,
not everybody goes through an impeachment proceeding before they actually
get prosecuted because that's within the discretion of the prosecutor
only for subordinate officers.
So as the LLC member points out very clearly,
the founding, the founders, the framers actually in the Constitution
Convention clearly contemplated that that sequence that I've described would
be mandatory.
He would have to be impeached and convicted first before
he could.
You could go on to impeachment also only deals with
certain crimes.
Bribery, treason, high crimes and misdemeanors.
Yeah, and if you look at actually at what is
said in the Federalist
#65 by Hamilton about that,
high crimes and misdemeanors basically cover anything that the US
Senate makes.
A political judgment justifies removing him from office and authorizing.
But a prosecution shooter is impartial,
does not make political judgments assumingly to charge.
I think that that has no basis in the context
of the current prosecution,
where the current incumbent of presidency is prosecuting his number
one political opponent and his greatest electoral threat.
In this particular asking you from the standpoint of what
the impeachment judgment clause is designed to do,
that it limits itself to certain
acts and then therefore, and if convicted,
as you indicated, impeached and convicted thereafter to be a
prosecution.
But not everybody goes through that process.
And of course it's limited to the certain actors in
that regard,
but not everybody has to go through that process.
Prosecutors later on can come into information and evidence after
they've investigated to make their determinations about what they'd like
to criminally prosecute.
So you're not always confined to whatever would be in
the impeachment judgment clause whatever the whatever the practice has
been with respect to subordinate officers.
The frame the evidence for the founding generation is clear
as you cannot do that with respect to the
and this is one example of may that's reinforcing all
the Supreme Court's case law that uniqueness of the presidency
and the person who occupies the office of the presidency.
So for example, you get repeated statements in Nixon against
Fitzgerald that's reaffirmed and Trump against Mazurs reaffirmed and Trump
against Vance and so forth about the unique nature of
that particular office. And therefore,
even under Clinton, where there's a deal cut under
President Nixon, where there's a pardon given,
there's an assumption that you could be prosecuted because why
enter into those particular acts?
Those examples are examples of purely private conduct.
For example, Clinton gets, Jones makes it very clear that
this stuff that President Clinton cut an indictment deal about
by admitting to certain wrongdoing in exchange for not being
indicted was purely private conduct.
Nobody has contended that the president's immune for prosecution for
purely private conduct.
It's a question is, can you be indicted for official
acts?
And you refer to the,
the pardon of President Nixon.
We have two things to say about that.
President Nixon was accused of a wide range of purely
private conduct.
He was facing potential indictment for that at the time
the pardon was issued to purely private conduct.
If we go to the indictment,
they are not alleging purely,
they're alleging that this is private conduct,
but it's subject to fraud,
not official acts. So why don't you speak to that
Since you said that,
we have to look at the broader question as well
as the indictment.
Yes, your Honor. So the allegations of the indictments,
the official acts, the women even characterize them as private
acts is to turn to the alleged motive or purpose
for that.
So their whole theory, their characterization of the language in
the indictment is,
oh, we're alleging purely private conduct because it was engaged
in for particular purposes.
And that's foreclosed by a very long and strong line
of Supreme Court processes.
Game case fit here that we this circuit
distinguished office seeker versus office holder in terms of how
you're committing the acts.
This blazing game strongly reinforced forces what was said it's
been said in Supreme Court cases and stump against Sparkman
going back to for example Marbury against Madison where it's
the nature of the ACT itself.
I understand the blazing game opinion to reinforce that by
saying it's an objective.
They use the word objective multiple times objective context specific
assessment does not turn on the purpose or motive that
was strongly pushed in blazing game in this court properly
rejected. That's consistent with Nixon against Fitzgerald Bradley against Fisher,
Spalding against V loss Judge hands opinion Greg Wire.
And that's the strongest, strongest principle of law in this
context,
Certain to my colleagues because I've taken up your time,
but we'll give you what you need
with respect to the actual indictment.
It does not gloss over what you know and put
it in terms as you're describing.
So if we look at the face of the indictment
as to what charge when it's gone through a grand
jury process,
unlike the impeachment judgment clause,
how do we look at those particular acts as described?
Because we have to take those at face value.
There's clear guidance on this from Nixon against Fitzgerald.
Where Nixon against Fitzgerald, The allegation was President Nixon had
unlawfully terminated a whistle blower essentially.
And that whistle blower came into court and says this
is not the subject to immunity because it was unlawful.
And the court said we're not looking at that granular
level of detail and we're not considering most importantly the
alleged motive for these acts.
It's said that the level of specificity to consider it
is
conducting in the business of the Air Force.
Similar here. If you look at the indictment,
there's five classes of conduct that are alleged many of
which are just obviously obviously official conduct meeting with the
US Department of Justice about who should be the cabinet
level officer running that is at the Kirkland of the
appointments power you said many of which So now I
really all of which I mean architecture is always just
one exception because there's allegations about the ELLIP speech and
under blazing game the contention was made they should be
remanded for that.
But if you look at the other public standards,
for example, President Trump's tweets,
the 2nd Circuit held at night First Amendment center that
it was based on overwhelming evidence.
That's an official channel. His Twitter account during the presidency
was an official channel of government communication.
And under the objective test and Blaza game,
all those tweets are obviously immune.
So also with meetings with the Department of Justice,
meeting with members of Congress,
that falls right within the heartland of Article 2,
Section 3, which authorized the president to communicate with Congress
about the matters that he views as expedient.
Let me ask you, first
of all,
I don't believe you were counseled then,
but what about the two concessions made
in the first impeachment proceeding and then in
from the advance that impeachment should be staying
and wait until he's out of office when he would
be subject to criminal liability.
As to Trump against Vance was purely private conduct that
involved a subpoena,
criminal subpoena for tax records that long predated President Trump's
time in office.
So it was purely private conduct.
A concession that he could be subbed to prosecution is
also correct.
As for the the impeachment brief,
for example, that they've cited in their briefs,
what that says is we have a judicial process in
this country,
period. We have investigated process in this country to which
no former officer is immune.
It did not say that we could never be raised
immunity defense,
it's that criminal process can go forward.
There's a quote in the Congressional Record in which your
counsel,
I'm sorry, your client said through counsel,
no former office holder is immune from investigation and prosecution.
The investigation is what there's no meaning to.
Well, that may be true of subordinate officers,
but as to the principal officer,
the president, he is immune unless he is impeached and
convicted.
Again, it comes back to the point he was he
was president at the time and his position was that
no former office holder is immune.
And in fact the argument was
there's no need to vote for impeachment because we have
this backstop,
which is criminal prosecution and it seems that many senators
he relied on that voting to acquit.
He realized the speculation said I think
statement and what I mean the court I think
lacks the ability to intuit what Senator,
what motivated senators votes in the impeachment process.
What the Constitution says is you must be impeachment.
I think the question that Judge Henderson was asking you
was you took
the position or your client did
during the impeachment proceedings that there would be
an option for criminal prosecution later and it's in the
Congressional record.
And I guess the question is what has changed or
why have you changed your position to agree with that
characterization of the statements in the Congressional record.
I believe there was a distinction between the judicial process
and the investigative process that was in the quote that
I just read.
In addition to that, whatever concession
may or may not have been made there would not
have
a raise you to kind of effect in this proceeding.
These are very different proceedings.
And again, so again, the notion that
no one is immune from the judicial process and the
judicial process should go forward is fully consistent with the
notion that defenses including presidential immunity,
which again rooted in the separation of powers,
we could be raised in those processes.
So the notion that there could be a criminal process
and then defenses like this could be raised in that
process is it's I think pretty straightforward.
There's no concession that there's no such thing as criminal
immunity.
There's no concession in in those proceedings that what the
District Court in this case did.
There can be very kind of astonishing holding that no
president is criminally immune from prosecution,
is is. It's just I think it's not there in
the Congressional record.
Let me
go back to Marbury versus Madison and you
isolated that one sentence.
Isn't it true that the progeny of Marbury versus Madison
has distinguished between discretionary official acts
and ministerial by which they mean imposed by law,
and that it's the it's the latter one
in which he can be held
liable. And and I want you to address
both USB Johnson
and the Commonwealth of Virginia because
the first one deals with the Speech and Debate clause
and
the Supreme Court said in essence lop off all of
the evidence
dealing with the speech and debate,
he can still be prosecuted.
That is that Congressman
or I think it was conspiracy to defraud the US
or something.
And then in the Commonwealth of Virginia
you had the judge
who had
been charged with a crime under which you could not
discriminate
in picking jurors based on rape.
And I my reading of that case
is that that the language that you isolate in your
reply brief
that it could just as easily be done.
That is the
choosing of the jury
a ministerial act by someone on the street.
To me that means when you have a duty that
is imposed by law.
Picking a jury, they said was ministerial,
imposed by law, whether you're
the man on the street,
whether you're the president, whether in that case you're in
the judge
who can be held criminally liable.
And that's how I that's how I read,
if not Marbury, the progeny,
that is. You can't stop an official act.
You have to say was a discretionary official act or
was it a ministerial?
I agree with that characterization of Marbury.
I think that distinction is President Marbury itself.
And I think what I respond to that is to
say first of all,
that extension has never been extended up to the president,
and for good reason because for over 200 years the
courts have held we can't
sit in judgment over the president's official acts under any
circumstances.
So, for example, Mississippi against Johnson.
No, not criminal. We don't have any criminal.
That's correct. It's never arisen until this case.
That is absolutely correct. But if you look at every
civil context,
what they've said, you keep in mind that what what
Chief Justice Marshall says is never examinable,
never examinable. So there be no judicial proceeding where you
could say the president did this and we're going to
sit in judgment directly over that.
That's reinforced by Mississippi against Johnson,
by Swan, against Clinton from this court more recently where
the courts hold that we can't even enjoin or even
really enter a declaratory judgment directly against the president for
his official acts. Where is the distinction between ministerial
and and and and and discretionary
has been held totally with respect to subordinate officers and
that goes all the way back to Marbury.
However, if you look at the indictment in this case
nothing that's alleged against President Trump could remotely be described
as ministerial.
I'm not aware the government has ever argued that if
you're talking about you know responding to widespread allegations of
fraud abuse and and
misfeasance in a presidential election trying to find how to
respond to that and mayor that's in the national interest
matters of that nature not ministerial at all.
So even if even even if that distinction goes all
the way up to the,
so to speak, it it it wouldn't save the indictment
here.
Why isn't it best
his constitutional duty to take care of that the laws
be faithfully executed
requires him to follow those laws.
Every one of them,
yeah. Nothing. I mean, I would say that the take
care of clause carrying out one's duties and the take
care of clause are inherently discretionary,
an example of a ministerial act.
For example, in Margaret, it's Madison is like delivering a
seal when you're requested because there's a separate statute,
right. What they emphasize is there's a separate statute.
The Secretary of State had kind of these two hats
on.
He was on one hand a direct agent of the
president in that
could never be examined by the courts.
On the other hand, this,
the, the, the original stash had posed all these like
purely ministerial duties that had to do with record keeping
and delivering documents.
Like if you got a land deed that's got a
seal on it and person asks for it where there's
no discretion at all.
When you're talking about the take care clause,
there is no statute that that could impose on the
president a,
you know, a mandatory duty to engage.
I mean, the notion that when the president's meeting with
the Department of Justice,
for example, saying, hey, we should investigate and enforce federal
fraud statutes,
the notion that that's ministerial strikes me as as,
as as insupportable.
Well, I think you're missing what I'm
what I'm asking, which is
I think it's paradoxical to say that
his constitutional duty to take care that the laws be
faithfully executed
allows him
to violate criminal laws. Now
we're at the motion to dismiss stage.
The government has charged the specific criminal laws.
We have to assume they're true.
I mean, my response that I think would be to
emphasize what Chief Justice Marshall said in Marbury,
which is that they can never be examined by courts.
That naturally includes a criminal proceeding.
But I thought you agreed with me that we've gotten
beyond
Marbury in the sense that
official act has been
subdivided into discretionary and duty bound or ministerial.
And in the ministerial or duty bound,
at least with respect to legislation,
even legislators and and judges,
they have been criminally law held,
criminally law.
And that's in the face,
at least with respect to the legislators of an explicit
constitutional privilege. Yeah, I don't view United States against Johnson
and even ex parte Virginia as resting on the ministerial
versus discretionary distinction.
I think what Johnson says is it doesn't say,
hey, when you were doing these other things,
they were ministerial. What it says is these were not
legislative acts,
right. And so when it draws the tinction between legislative
and non legislative acts,
so also I think that's the right reading of ex
parte Virginia.
It goes they go on to say judicial act.
Notice the argument that picking a jury,
I don't even believe they use the words my recollection
ministerial.
They say that because they were criminal acts,
they were criminal acts. Picking the jury based on race
is a criminal act.
And whatever Johnson did, I think it was
the very same statute of fraud against the United States.
That is before us today.
I would say that the distinction in those cases is
between in the judicial case,
Johnson LED judicial or sorry legislative act.
Sorry the legislative case. Johnson is between legislative acts and
non legislative acts.
The distinction in ex parte Virginia is between
judicial acts and non judicial act.
That phrase is used. And here the distinction is between
presidential acts and non presidential acts.
And everything that's alleged in the indictment is a presidential
act.
May I?
There are a number of precedents
or cases in which the Supreme Court has reviewed
actions by the president. The summit case of Youngstown Sheet
and Tube where the Supreme Court reviewed Harry
Truman's seizure of the steel mills during the Korean War.
There's also the case of Little Beream
where Little versus Beream where Chief Justice Marshall review the
actions President Adams when he sees certain vessels Trump versus
Hawaii was reviewing President Trump's order restricting the entry into
the United States of Nationalists from certain foreign countries.
How does that square with your position that
judiciary can never review executive action?
All those cases fall squarely within the well established exception
and ex parte young where the the judiciary is allowed
and does frequently issue declaratory judgments,
injunctions, judgments against subordinate officers,
even the presidents. These are presidents.
Harry Truman was the President when he sees the steel
mill.
How does that comport with your theory
in that case? Was an injunction against the Secretary of
Congress,
not against the President? This Court has reapproved very recently
that you cannot issue an injunction directly against the President.
The court has no jurisdiction to do that.
Cannot enter. It strongly indicates in new doubt against Roberts
that the court can't even enter a declaration.
Can review presidential action if
on paper they direct their judgement to a subordinate officer,
Is that what you're saying?
Because these are presidential actions,
the court can definitely enjoin the actions of subordinate officers
that violate the constitution.
That is ex parte young.
All the cases fall through.
I'm asking you a different question because these are presidential
decisions,
presidential actions, and you're saying that the court can review
presidential actions as long as when they issue the judgement,
they issue it to a subtended
in direct context. It can directly sit in judgement over
the presence officials.
It's been established for over 2 years.
You're using the impeachment judgement clause
essentially has a negative implication with respect to that.
The civilian officer or president of course has to be
impeached and convicted and then nevertheless thereafter,
If there is an acquittal,
how are you using it in that regard?
Because sometimes, in particularly in this case,
the acquittal can arise from lack of jurisdiction,
not actually trying the merits of the case.
The impeachment judgment clause does distinguish between those sort of
marriage related acquittals and non merits related acquittals,
acquittals. Frankly, the same sort of thing comes up in
just criminal prosecutions under the double jeopardy clause where,
you know, a determination that the defendant is acquitted does
not necessarily reflect an actual determination that they're not
and actually guilty. And in fact,
this is emphasizing the OLC memo that they themselves addressed
that actually,
you know, that determination often does
reflects things that are distinct from the merits.
So that doesn't, I think,
in any way undermine the sort of double jeopardy force,
so to speak, of the impeachment judgement clause.
And one of the priests indicated that Jack Smith
is improperly appointed. Do you have a position there?
It's a very persuasive brief,
but I can see we have not raised in this
case.
I think it raises very powerful questions,
but we haven't raised in this case at this time.
Let me ask you just about the effect of blasting
game.
If we
say we can't determine if these acts are official or
private, I want to stay away from that.
I'm going to say ministerial or discretionary
and
blasting game characterized in terms of office seas or versus
office holder.
What is your position about?
Would we have to remand it
for the District Judge to decide in the first instance
whether
these various
the four points that the defenses made
against imposing criminal liability
hinge on whether the acts are ministerial discretionary,
official, private. However you want to characterize,
use the phrase from Clinton against Jones which says purely
private conduct is what can be,
you know subject to judicial process after a president leaves
office.
In response to your question,
our principal position is you can look at this indictment
and it alleges official acts and it can be ordered
to dismissed.
We we acknowledge though that the District Court didn't reach
that issue but well as a game did remand and
the court absolutely has the discretion to remand to the
District Court for the application of the doctrine of criminal
immunity in the first instance.
And we admit that that would be a natural thing
for the court to do specific acts,
correct. Yeah. In other words if the court holds that
there is presidential immunity which it should then remand the
District Court to say OK,
go through the indictment and or else hold factual findings
and so forth to decide how it applies the conduct
allege in this case we acknowledge that would be the
court has the discretion to do that and that would
be a natural course and
that there are no further questions.
I I have one more question.
So under the framework established in or discussed in Nixon
versus Fitzgerald,
we're supposed to conduct a balancing test where we balance
the need for the asserted immunity versus other public interests.
And I see you as trying to represent
a need
for the executive to have this immunity,
to facilitate executive functions, the ability to act without hesitation,
to be fearless, to make decision making with,
to make decisions without being inhibited by the fear of
prosecution. But it seems to me that there are some
other Article 2 interests here that are countervailing.
For example, under the under Article 2,
there's an executive vesting clause,
and so there is an interest
of the executive branch as an institution
to have constitutional
executive power vest in a newly elected president.
There's also an executive interest as an institution
in law enforcement in enforcing criminal laws.
And so it seems to me,
if we're weighing executive interests
versus public interests, public interests and things like the integrity
of an election,
that President Trump's position is not fully aligned with the
institutional interests of the executive branch.
And in this balancing test that weakens
the executive
power that he's trying to assert,
I say three things in response to that.
First of all, Nixon, against Fitzgerald,
emphasizes that the most compelling consideration,
or one considers what it describes as policy considerations rooted
in our in the separation of powers is the rendering
of the executive branch official,
unduly cautious, unduly cautious in the exercise of highly controversial
and sensitive decisions that come up all the time.
If a president has to look over his shoulder or
her shoulder every time he or she has to make
a A
a controversial decision, worry after I leave office,
if I go into jail for this,
when my political opponents take power,
that inevitably dampens the ability of the president.
No, I understand that that's your position.
But I guess I'm asking you,
what about other Article 2 interests?
That's one interest. But there are other Article 2 interests
in plate here too,
and they seem to be countervailing.
The interest in executive vesting,
the interest in law enforcement,
those are also executive branch interests.
And how should that affect the analysis?
To the extent the Court conducts A balancing our principal
positions,
you can go back to Marbury versus Madison and adopt
A categorical rule which is also reference and mix against
Fitzgerald.
But to the extent the Court reaches the balancing of
policy considerations,
those were decisively outweighed by the
sort of Republic shattering consequences of subjecting our chief executives
in an endless cycle to prosecution once they leave office.
The Founders were very much against that.
They were deeply concerned with that.
You see that in Hamilton's writings in in Federalist
6569 and 77. You see it reflected at Madison's concern
about newfangled and artificial treasons in Federalist 47.
And that is the original meaning of the Constitution.
You think we should? It just occurred to me.
Do you think we should take
any
cognizance of the fact that when they wrote that
George Washington was the president,
I mean, a very, very
strong executive, that Congress was brand new,
everything else was brand new,
and
things have balanced out. I mean,
we've got a strong Congress,
we've got a strong judiciary,
and we've got a strong president.
I think that if you look at the writings,
the founders, they were definitely looking past the presidency of
George Washington,
obviously an iconic figure, looking past the presidency of George
Washington,
future presidencies. And they correctly anticipated that the nation might.
What they're deeply concerned about was that the nation would
devolve into factions.
Factionalism did not govern the
presidency of George Washington because of his moral authority.
However, immediately when you got to Adams and Jefferson,
you immediately devolved into factions they correctly anticipated and were
deliberately looking past that presidency in the future of the
Republic.
A tradition has stood for
234 years until last year when it was shattered by
the indictment of President Trump.
And for if the court has no further questions,
we would ask the court to reverse.
And if the court rules against us in any respect,
we renew our request and the court
stay as mandate to allow us to seek further review
both end bank and or Supreme Court review and you
give 5 minutes.
Thank you, Your Honor. OK,
Mr. Pierce,
good morning and may I please the court?
Never in our nation's history until this case
as a President claimed that immunity and criminal prosecution extends
beyond his time office.
The President has a unique constitutional role,
but he is not above the law.
Separation of powers, principles, constitutional text,
history, precedent, and other immunity doctrines all points to the
conclusion that a former president enjoys no immunity from criminal
prosecution.
At a minimum, this case,
in which the defendant is alleged to have conspired to
overturn the results of a presidential election,
is not the place to recognize some novel form of
criminal immunity.
Now I want to start
with jurisdiction as Judge Childs raised.
It is our view that the court has and should
entertain both claims before it.
With respect to the immunity claim,
I think this court's decision in Cisneros 10 years after
Midland Asphalt did allude to a type of separation of
powers
claim that would involving presidential immunity.
I think Judge Henderson pointed out the Supreme Court itself
has acknowledged that this idea of an explicit guarantee is
is more of a suggestion than some sort of statutory
prescription. But there's been no cases since then that have
actually used that word suggestion.
To follow up on that line of thinking
within the Supreme Court, I,
I I don't believe there have been cases,
but certainly this court in Cisneros as well as in
cases also post Midland asphalt like Rose,
Rostenkowski and Durenberger have have recognized that this type of
a separation of powers claim when you're talking about immunity
is something for which a collateral order,
appellate jurisdiction on a collateral order theory is available.
Other circuits, I think it's first,
second and 10th that keep following that line of thinking.
With respect to Midlands, Asphalt requires an explicit constitutional or
statutory language that says you cannot be tried.
So, so two responses. One,
I think in cases like Cisneros,
this court has spoken otherwise,
but nonetheless I think the only one there is the
First Circuit's decision in Joseph where it was the case
of a judge seeking a criminal
raising an immunity defense to a criminal prosecution.
As this court acknowledged in in both,
I believe Rostenkowski and Durenberger,
that's in some tension with or it didn't acknowledge that.
But the case the court there talked about Claiborne and
Hastings,
which are 9th Circuit Circuit and 11th Circuit cases.
I think Judge Easterbrook in his shock opinion noted that
when it deals with a personal immunity like that,
it's different than the kind of transactional immunities that were
considered in the 10th and the Second Circuit cases.
And at the end of the day,
I think we do sort of a small point of
common ground between US and the defendant.
We do think that with respect to jurisdiction,
there is a little bit of a different inquiry with
respect to a president.
We don't think that carries over to the merits in
the least.
And I think United States versus Nixon is sort of
the perfect example of that.
There the court said it would be unseemly to hold
the president to require the president to go into contempt.
None the less reaching the merits of course rejected President
Nixon's absolute
executive privilege claim and required that the you don't see
a distinction on the civil versus criminal context.
For the cases I'm referring to are civil criminal cases.
So I don't. And Rose said as much here when
talking about civil and criminal with respect to speech or
debate.
And again I mean I know that I know this
Nixon versus Fitzgerald is a civil case
and we strongly disagree that it should be applied here
for many of the reasons that a judge pan set
out.
But I do think with respect to the immunity,
again given the language it rows,
that would supply basis for this court to entertain the
immunity claim.
But why aren't you taking the position that we should
dismiss this appeal
because it's interlocutory? Doesn't that advance your interests?
Our our interests are twofold.
One, as the as in the United States versus Nixon,
it is doing justice. And then a second is indeed
to move promptly to satisfy and vindicate the public's and
the defendants interest in a prompt resolution of this trial.
But doing justice means getting the law right.
And it's our view that
even if a dismissal on jurisdiction might move this case
faster,
actually, empirically, that's hard to know.
We just don't think that's the the right analysis here
on either immunity or the second claim.
So we we have a line of cases
including Kramer versus Gates and American Hospital
Association versus Azar.
It says that we can assume hypothetical statutory jurisdiction and
reach the merits of a case,
Statutory jurisdiction being distinct from Article 3 jurisdiction which we
could never assume because that implicates the power of the
court to act.
So if we had discretion to
reach the merits versus just dismissing this case under Midland
Asphalt,
which I think is a strong
precedent which suggests that this appeal is internal locatory and
not does not fall into the collateral order doctrine,
how should we determine how to exercise that jurisdiction about
whether or not we should reach the merits?
So I think in the American hospital's decision,
the 2020 decision, the court said some the formulation was
something like we're we're doubtful as to our jurisdiction,
but none the less invoking the line of cases you've
just described went on to decide the merits.
We would urge the courts to do the same here
even if it entertains doubts.
With respect to the jurisdiction,
yes, hypothetical statutory jurisdiction is available under the law of
the circuit.
The court should use that to to reach the merit.
Doesn't that lead to a hypothetical decision and an advisory
opinion?
No, I think that that.
So we disagree. The Supreme Court has said that.
No, I don't think the Supreme Court has said that.
I mean the Steel Co is kind of the leading
Supreme Court decision.
And then some courts including this,
this court has devised A hypothetical statutory jurisdiction doctrine.
Now if this court were to dismiss for lack of
jurisdiction and then say none the less as an alternative
holding,
you know, here's how we would come out on the
merits that I think would be improper.
And I and I that is what I understand the
American oversight brief to be suggesting at footnote 11 on
page twenty of its brief.
That I don't think is something the court could do.
I understand the hypothetical statutory jurisdiction piece to allow the
court to say,
you know what, this is hard.
There might be arguments on both sides.
We think that there is,
we assume hypothetical statutory jurisdiction.
We move forward, we decide the merits.
Now let me ask you about Marbury Smith.
What's your interpretation of its progeny or even the
that the case itself.
So
our interpretation is is much closer in line with what
I think I heard Judge Pan setting out and and
similar to to yours,
it certainly does not erect
A unreviewable power for the presidency.
I think the the sort of the prime example of
that is the Steel Seizure case,
the Youngstown case
that was President Truman closing the steel mills that was
the court coming in and reviewing that.
We see that all the way through to the present
And so it's it's hard to see any world in
which which the court just says,
you know, we can't, we can't intervene here.
We do. See, I, I accept the courts,
Judge Henderson, the distinction between
sort of ministerial and discretionary acts,
compliance with the law is not some sort of discretionary
call,
right. It is something that
I fully endorse or agree with the idea of the
paradox of a president
on the one hand having the Article 2 take care
of responsibility,
and on the other hand sort of seeing the law
as as compliance with the law is optional.
Let me switch and ask you,
how do we write an opinion that would stop
the floodgates?
Your predecessors in their OLC opinions recognize
that criminal liability would be unavoidably political.
A couple of responses for one,
of course that was with respect to a sitting president.
I think the analysis is is extraordinarily different with respect
to a former president which which OLC in that very
same,
I'm sorry, but not with respect to
being
necessarily political. Well, I I think the the there is
a political process which is impeachment and we can talk
about that.
But there is a legal process which is decidedly not
political and that is a process which has the kinds
of safeguards that a couple of of members of the
court here have already referred to.
We're talking about prosecutors who follow,
who are, you know, follow strict codes and
who are presumed to act with regularity.
Grand jurors
had its jury eventually, and and this court sort of
standing,
Article 3 court standing above it.
But I also want to push back a little bit
against this idea of a floodgate.
At least since the Watergate era
years ago, has there been widespread societal recognition,
including by presidents and the executive branch,
that a former president is subject to criminal prosecution.
And Nixon was not about private conduct.
Nixon was about, among other things,
using the CIA to try to interfere with an FBI
investigation.
He then accepts A pardon,
understanding that after having resigned.
Right. So again, I think that also undermines this impeachment
first argument.
After Nixon, we we then see a series of independent
and special prosecutors investigating a range of different types of
conduct.
You saw independent Counsel Lawrence Walsh in the Iran Contra
affair.
That's an example that the defendant invokes in his reply
brief.
In Chapter 27 of that report,
the independent counsel assumes that President Reagan is is subject
to prosecution and says
but we don't, we didn't get there evidentiarily,
right. There would not have,
not that we thought there was some sort of immunity
and that has continued through to the present.
And so this notion that we're all of a sudden
going to see a floodgate.
I think
the, you know again the careful investigations in the in
the Clinton era
didn't result in any charges.
The fact that this investigation did doesn't reflect that we
are going to see a sea change of vindictive tit
for tat
prosecutions in the future. I think it reflects the fundamentally
unprecedented nature of the criminal charges here.
Never before has there been allegations that sitting president has,
with private individuals and using the levers of power sought
to fundamentally subvert the Democratic Republic and the electoral system.
And frankly if that kind of fact pattern arises again,
I think it would be awfully scary if there weren't
some sort of mechanism by which to reach that
criminally. In your brief you raised some sort of lesser
immunity potentially applying want to speak to that.
I do. We don't think that's
comes into to play here.
I think the point was in some sort of more
challenging cases,
it might be that
where a president is operating under extraordinary time pressure has
to make a very difficult kind of national security type
of of decision.
You know, do I go in and
commit this kind of do we do we order the,
the drone strike under these circumstances,
You know, a president will often have a cadre of
lawyers to advise him or her.
The lawyers say, Madam President,
we'll get, we'll get you a memo in,
in two months. That's not going to be enough in
that situation.
If there were a drone strike,
civilians were killed. That theoretically could be subject to some
sort of prosecution
as as murder. I think that might be the kind
of place in which the court would
properly recognize some kind of immunity,
but that is of course nothing like what we've got
here.
I sort of take the former officials brief
discussing the vesting clause to talk about the kind of
the nature of
charges when they focus on again subverting the electoral process.
At a minimum there's going to be,
there should be no type of immunity that covers that.
So are you saying it should be a case by
case balancing in each case whether there's immunity or how?
How does this work as a legal standard?
So, so we think, I think that it should just
be as the District Court held a finding.
There is a balancing under Fitzgerald,
right? That's our our view.
You start with this question.
What are the burdens against the presidency and what are
the interests to be?
Further
the answer to that question under Fitzgerald,
we think that the burdens that my friend talks about
on the other side are are overstated.
I'm happy to just describe why we think the
interest in the the public's interest in on an ongoing
criminal prosecution means that there should be an across the
board rule that a former president is indeed subject to
criminal prosecution. What I'm describing in response to Judge Child's
questions is,
in a particular case, might there be some
extraordinary circumstance where a president,
a former president, could invoke an immunity?
Maybe. I don't think the court has to reach that
there.
I think the court could write an opinion that reserves
and says based on the nature of the allegations,
which we take as true.
There is no reason to recognize that here.
And so I don't think it needs to be a
case by case analysis,
but I think the court can
reserve that type of question to the extent it gives
one pause about a president and future situation.
That in, can you answer the question I posed earlier
to your opposing counsel about
are we to look at the
broader question that was
dealt with by Judge Chuck and with respect to presidential
immunity,
no criminal absolute immunity for no criminal prosecution of official
acts versus looking at this indictment and accepting as true
the allegations that it brought there?
Or both. So we have a strong preference that the
court adopts the former view and looks at the the
question in the in the way of as the District
Court did which is to say based on questions of
separation of powers of constitutional text history precedent.
Is there in fact immunity for a former president.
We think the answer to that is is no for
for of course all the reasons we we put in
the brief and and I'm happy to sort of address
here
candidly I think if the court gets to that second
question there are some hard questions about the nature of
official acts.
And frankly as I think judge pans hypothetical described I
mean what kind of world are we living in if
as I understood my friend on the other side to
say here a president orders his SEAL team to assassinate
a political rival and resigns for example before an impeachment
not a criminal act. President sells a pardon,
resigns or is not impeached,
not a crime. I think that is extraordinarily frightening future
and that is the kind of we're talking about a
balancing and a weighing of the of the interest.
I think that should weigh extraordinarily heavily in the court's
consideration.
Let me ask you about the effect of blasting game.
What is it?
How does it either bind us?
How is it persuasive for us?
So I think it it,
it formally has has no application at all it because
of course very early on in the opinion the court
says we're not dealing with any questions of immunity in
the criminal context. I, I,
I tend to agree with my friend on the other
side that in many respects it does reinforce the nature
of the Fitzgerald civil outer perimeter standard.
It says you don't look at intent or you don't
look at purpose.
Context plays a a a more important role than often
the content of communications.
I think the the significant change of course is the
acknowledgement of
the the looking at a a a president,
whether that president is acting in his or her role
as office seeker or office holder.
But again, to go back to my response to Judge
Child's question,
although that would change the nature of whether certain may
change the nature of whether certain things are or are
not official acts in the indictment,
we just think that's entirely the wrong paradigm to to
use.
We think under Fitzgerald, in fact,
that would be inconsistent with
Fitzgerald's reasoning and also just irreconcilable with the nature of
how criminal law works.
I mean to say that we're not going to take
account of
motive or intent. There are plenty of acts that that
that everyday.
I mean, for example, if I
were to encourage someone not to testify at trial because
I wanted to go on a hike with that person,
it's not a crime. If I were to encourage someone
not to go on a hike because
their testimony at sorry, encourage them to to skip their
trial testimony because they were,
their testimony was going to incriminate me.
It's the same underlying act.
And now when you map that on to the criminal
to the presidential context,
you come up with some of the the frightening hypotheticals
where as long as something is plausibly official,
even if it involves assassinating a prominent critic or a
business rival,
that that that would seem to then
to be exempt potentially from from criminal prosecution.
We certainly wouldn't concede that if that's the world we
need to live in.
I think we would advance plenty of arguments below,
but we really, but those arguments themselves would create satellite
litigation that are an additional reason not to go down
this route.
But looking and thinking about your answer about potentially not
looking at motive and intent
when there is a criminal prosecution that Mens ray and
that intent is part of
the actual statue charged criminally.
Yes, precisely. And that's why why it wouldn't make sense
to then come in and use this non motive.
As I understand how Fitzgerald out of perimeter standard might
work,
it could say those types of official acts,
official conduct that is something from which the president is
immune.
You don't ever get to that second question of
well did that person act then with
Mens Rea Can we prove it beyond a reasonable doubt?
Because it is, at least under a theory where it's
not
available at trial, then there's no way to reach that
conduct.
When we're looking at this indictment,
though, back to Judge Henderson's question about the use of
Blessing game,
some of the acts are same or similar,
and there was direct discussion of it in that opinion
as determining whether it was office seeker versus office holder.
So do we use Blessing Game at least for that?
So if this court decides the case the way the
District Court does
did pardon me, then I don't think Blasting Game has
any role to play at all because there is no
question of whether,
you know, was this act official or were these sets
of allegations official.
The question is based on a Fitzgerald analysis in case
you know,
history, precedent, etcetera,
you know, is, is there any quantum of immunity for
for a former president?
We think the answer to that question is no.
There's no reason, as the District Court also found,
to turn to the indictment and consider this outer perimeter,
this civil outer perimeter standard.
How about you don't decide it the way the District
Court
did? If you don't, I mean I suppose the lie
would be on the blessing.
So there are a lot of different ways this court
could could not decide it that way.
I think to to pick up on my response to
Judge Childs,
we certainly stand by our our view in the brief
that
some substantial number of allegations would fall outside of an
an outer perimeter and that I think is enough to
affirm
I think either parties are urging the court at that
point to then send of course the case back to
the District Court.
I think that then would create a series of challenging
questions that I mentioned earlier
What are the, what are the evidentiary theories under which
that evidence could potentially come in
And but it would be our strong view and and
we would want if the court
followed that route which we urge the court not to,
to make clear that immunity is an on off switch
right.
This is the immunity appeal.
If the court says we affirm we send it back,
there's no immunity, then other things become evidentiary questions or
questions really of of jury instructions which any appeal is
then an appeal from a final judgement
if any final judgement and the immunity defense is never
lost.
Well, I I don't think it's immunity at that point.
I think this court will in in what I've just
described will have said there is no immunity.
There may be some types of other challenges as evidence
comes in a trial,
but again I think that would lead to this
extraordinarily complicated litigation. That is not the top line reason,
but certainly among the reasons why the court should not
go down that path.
Since President Trump concedes that a president can be criminally
prosecuted under some some circumstances,
he says that that is true only if he is
first impeached and convicted by Congress.
Do you agree that this appeal largely boils down to
whether he's correct in his interpretation of the impeachment judgment
clause?
That is, if he's correct
that the impeachment judgment clause
includes this impeachment first rule,
then he wins. And if he's wrong,
if we think the impeachment judgment clause does not
contain an impeachment first rule,
then he loses. So I think that's basically right.
I mean the defendants theory over the course of this
litigation has evolved a bit And I think now before
this court,
I understand the arguments to be principally sort of the
principal submission to be
as you've just described this,
what we call in our brief the condition precedent argument
that there is only liability,
criminal liability for a former president if
that president has been impeached and convicted.
And that is wrong for textual text,
sexual structural, historical reasons, and a host of practical ones.
One of which I'll start with again,
is to just amplify the point.
It would mean that if a former president engages in
assassination, selling, pardons, these kinds of things and then isn't
impeached
and convicted, there is no accountability for that for that
individual and that is that is frightening.
Now to go back to some of the textual and
historical and structural,
you know, my friend on the other side sort of
suggests this is what the founders were talking about and
this is what they were worried about.
I think it's entirely an inaccurate representation of the of
the founding era history.
There's basically no discussion of the impeachment judgment clause,
which I take the the defendants principled
textual arguments to be What the impeachment judgment clause did
was was two things the District Court described right It
constrained the sanctions that Congress could place on an impeached
and convicted officer, not only a president,
any kind of officer, to
removal or disqualification. And then it made clear that that
impeachment did not
impose some sort of preclusive bar on subsequent criminal prosecution.
You would think that if there was this kind of
impeachment first,
requirement impeachment and conviction first,
you might actually find something somewhere in the sources,
the the, the framing, the,
the convention in Philadelphia, the ratification discussions,
early history. There was nothing of that.
We've cited certain things in in our brief
from James Wilson from Edmund Pendleton,
from Representative Dana that say this
Justice story.
I don't hear the defendant to offer anything other than
Will Hamilton.
All that Hamilton was describing was the undisputed point here
that a sitting president can't be subject to criminal prosecution
until that sitting president is no longer in office.
Whether the removal from office is through impeachment and conviction
or simply the end of the term.
Now a structural point as well that I just want
to quickly make.
The District Court made this,
which is if this rule were right,
that would, if the condition precedent rule were correct,
it would pose significant separation of powers problem of its
own.
It would basically mean that the executive branch would only
be able to prosecute someone
if Congress had acted. And there are all sorts of
reasons why of course Congress won't act.
For one, they've never believed that it was required and
and also
in certain instances, they may decide that they don't have
jurisdiction.
Many of the of the members of Congress seem to
hold that view with respect to the defendants.
Second, impeachment.
Thank you very much.
Go ahead. Thank you, Your Honor.
And in my limited time remaining,
I just want to make three points to the court
in response to the opposing counsel's argument there.
One is that the opposing counsel used the phrase above
the law saying that an immunity doctrine for criminal immunity
would place the president above the law.
I would just direct the court's attention to what the
Supreme Court said it Nixon against Fitzgerald in the context
of civil immunity.
They described the allegation that immunity sets the the official
above the law as quote
rhetorically chilling but wholly unjustified.
the US Constitution, the separation of powers,
the executive vesting clause, the impeachment judgment clause.
These are the foundational and fundamental law of our country,
and the president's immunity is determined on that.
So that is more rhetoric than reality,
is what the Supreme Court said in Nixon against Fitzgerald.
I'd also point out that when it comes to the
question of whether or not the indictment alleges solely official
acts,
the indictment does not allege that President Trump did anything
wrong after he left office.
So it focuses solely on acts that he took while
he was in office.
And that's a telling indication that we're dealing with official
acts here.
And then finally, I would address Judge Henderson's your question
about the floodgates.
And I tie that to what my opposing counsel said
about a so-called frightening future.
The frightening future that he alleges,
where presidents are very, very seldom,
if ever, prosecuted because they have to be impeached and
convicted first,
is the one we've lived under for the last
235 years. That's not a frightening future.
That's our Republic. What he is forecasting is a situation
where the floodgates will be open.
We are in a situation where
we have the prosecution of the chief political opponent who's
winning in every poll
financial election upcoming next year and is being prosecuted by
the administration that he's seeking to replace.
That is the frightening future that is tailor made to
launch cycles of recrimination that will shake our Republic for
the future.
If you have the impeachment judgment clause,
as you indicate, indicate impeachment,
then conviction, but then the president either resigns,
is removed, and then later on is prosecuted for a
different crime.
Can that happen or is there immunity there?
I'm not sure I understand the hypothetical.
Could you say it again,
I apologize. It's just indicating that if you're resting on
that,
there must be impeachment and conviction,
and it's for one set of crimes.
But then later on, the president either removes,
is removed from office or resigns
and later on there's a prosecution for something different.
Is there immunity for that later crime?
Yes. I think that's the better reason that obviously it's
not presented in this case because we have a close
match between the conduct,
the underlying conduct or transaction occurrence that's alleged in the
articles of impeachment of which there was an acquittal.
An acquittal right, which is the strongest case for double
jeopardy and between the facts alleged in the indictment.
But if there were like an unrelated prosecution because you
just made a statement about he's only being
prosecuted for crimes while in office
and so that's why I'm asking about leaving office.
And then they are after being prosecuted for something different,
you have to be on the plain text of the
Constitution.
The best reading would be he has to be impeached
and convicted for the thing that he subsequently prosecuted.
So if he were Peach convicted and removed from office
and they charged him with another official act that was
unrelated to the impeachment,
I think that what Chief Justice Marshall says and Marbury
would still govern.
I think it's obviously it's not presented in this case,
the court doesn't have to decide it,
but that'd be my answer.
So I just want to confirm
your position is if President Trump had been convicted
after his impeachment trial on incitement of insurrection.
If he'd been convicted, then this prosecution would be entirely
proper,
which I would say that if you were impeached and
convicted for the same and similar conduct,
then that would authorize A subsequent prosecution.
So we have many other issues with this prosecution
because I think you said in your brief that that
impeachment
for incitement of insurrection is based on the same or
related conduct as that which is in the indictment.
There's that, Yes, yeah, I agree with that.
So if he had been convicted by the Senate,
then this prosecution would be entirely proper,
correct. I could not phrase it that way because there's
lots of other problems with this prosecution that we raise
the extensive police,
the District Court he couldn't prosecuted under the impeachment judgement
clause if he had been convicted by the Senate.
When he was impeached for incitement of insurrection on same
or related conduct as what's in the indictment,
then this prosecution would be properly brought.
There's a prosecution could be properly brought this prosecution,
which has tons of other problems with it.
I just want to be very clear about that.
I'm thinking any concession that this prosecution is all right.
Let me try one more time.
Under your interpretation of the impeachment Judgment clause,
if President Trump had been convicted when he was previously
impeached on same or related conduct as that which is
in this indictment,
the government could properly prosecute him for that same or
related conduct,
yes or no, potentially, provided they
qualified with all kinds of other legal doctrines that are
violated in this case.
So I admit that they possibly asking you under your
under your interpretation of the Impeachment judgement clause
is that proper Is that allowed And I stand on
my prior answer.
I think we're we I I understand there might be
other reasons why you would challenge this prosecution.
I'm saying based on your interpretation of the clause
this prosecution would be properly brought if
a yeah I would not say this prosecution be very
clear about that but it's a prosecution based on same
or related conduct
this prosecution which has many other issues related to it.
What I would say is that the impeachment judgment judgment
calls authorizes the prosecution of a president who's been impeached
and convicted by the Senate which President Trump make it
a hypothetical. Say a president was
impeached and convicted on a charge of incitement of insurrection
That is under the same
allegations as a criminal indictment he's he's convicted
then the government could bring a prosecution for the same
or related conduct.
Correct. Don't disagree with that.
Correct. And then that means that the
conducts that same or related
even if it's official they he could be prosecuted for
it.
Correct.
Correct. OK thank you. But my question goes to after
the fact.
And the reason I state that even though you're challenging
that these actions are only occurring while president,
the district court's decision was that there is no presidential
immunity from prosecution for official acts.
It doesn't put a time frame in there.
And so that's why I'm going to be on your
investigation.
Your prosecution might not come until later,
after the president has left office.
So are you telling us that we are limited to
a time frame in answering this question?
I think the timeframe is set forth by Chief Justice
in Kershaw legates Madison when he says never examined by
the courts.
So unless there is that
that one gatekeeping incident that has to occur,
which is impeachment and conviction,
the official acts, the court has no jurisdiction to review
them under the separation of powers and the executive vesting
courts.
But that also assumes that an impeachment proceeding occurred if
there is not one,
because we discussed earlier that not all officials go through
that process.
Absolutely. That's a judgement call.
As to whether that process would even be broad,
I would say we have two arguments that reinforce each
other.
So if there's no impeachment ever and no conviction,
then the official acts are immune,
period. Further, the impeachment judgement clause incorporates a doctrine of,
you know, doctrine of devil jeopardy that prohibits it,
especially in the case of acquittal.
So those are reinforcing doctrines that are set forth in
the Constitution.
There
are no further questions we'd ask the court to reverse.
All right.