Transcripts For CSPAN2 Judges 20240705

[indiscernible] good morning. Before you get started can just get a couple of things on the record. Our jurisdiction was challenged by an amica. I do want to speak to you more about jurisdiction, because we still have to say we have the jurisdiction. So even though you believe there is jurisdiction with respect to the collateral order doctrine, how do you place that in line with the asphalt case which specifically says in a criminal case, your jurisdiction needs to stem from the the explicit as well in statutory law . We have three responses. If you look at the language that Justice Scalia discussed, a situation where the right is anl value would be destroyed and these claims of absolute imni within that discrimination explicitly stating that and dont have communication with anything in the statute. I disagree. The doctrine arisees from ti 1. It is reenforced by the impeachment judgment clause which refers to wallace facility is talking about a situation where the right not to be tried is distinguishishing and is dismissal of an indictment. We have the trial of any of the clauses in which the supreme has found interlockan jurisdiction. On the immugs midland asphalt not■l president ial the argument situations where the court said look, there is a speech and debate claim and another claim that doesnt derive from the constitution but closely akin in the double jeopardy trial scenario you have twice put in jeopardy so you cannot be tried again in that regard. In the speech and debate says shall not be questioned, so the language was explicit but doesnt say ex applies italy. One is the plain language of impeachment clause. [indiscernible] impeachment and judgment clause. And this c this is not magic and got to say right there in the context that this has a right to be tried. And explicitly the right not to be tried. And the language that by midland asphalt is the situation where there is the appeal and legal and practical value is destroyed. And there are similar language in cisneros. It has to be [indiscernible] im not aware of that. Equip. I think that is an excellent point. And turning to the merits if i■ may, your honor, to authorize the prosecution of a president for his official acts would open up a pan doras box which this nation may never recover. Could george w. Bushe allegedlyg false information to congress to induce the nation to go to war in iraq under false present teenses could president obama for allegedly drone strikes targeting u. S. Citizens. Can i e implications of what you are arguing . I understand your posi■u■ntion m criminal prosecution from any official act that he takes as president , even if that action is unlawful or unconstitutional purpose, is that correct . If the president is convicted and impeached in a proceeding that reflects widespread political consensus that would have plain language under the impeachment clause. So it seems to me there are a lot of things that might not go throug because it is quite a couple birr some rm process that has a lot of different people involved. So in your view, could a president self pardon or sel military secrets . Those are official acts, official act to communicate with a Foreign Government and such a president would not be subject to criminal prosecution . The sale of pardons because there are with examples when it comes to president clinton pardoning of mark rich. [indiscernible] whether or not a president can be prosecuted a for that . As long as it is an official act. Private conduct inlinton jones could a president Order Seal Team 6 to assassinate a political rival . He would have to be and be impeached q and■q there would be no criminal prosecution and no criminal liability for that . Chiefces opinion and the plain language of the impeachment judgment clause presuppose what the founders i asked you a yes or no question. Could a president who ordered seal team 6e a political rival could he be subject to criminal . If he were impeached and convicted. My answer is a qualified yes. A political process has to would require impeachment and conviction by the senate. In these exceptional cases which the memo points out you would expect a speedy impeachment and conviction. Founders were concerned about was what James Madison in federal lift 47. They were more concerned with the abuse of political purposes to disable and that he see in t. I asked you a series of ions taken by a president and could be considered official acts and i asked you would such a president be subject to criminal prosecution . And your answer, yes or no is no . I said qualified yes if he is convicted and impeached. You are saying a president could selfpardon sell military secrets and seal team 6 to assassin a political rival . It may sail of pardons your brief says communicating with executive Branch Agencies and communicating with Foreign Governments is an official act. [indiscernible] because under the procedure that you concede he can be prosecuted if there is an impeachment and conviction by the senate. [indiscernible] you are conceding that the president can be criminally prosecuted under certain circumstances. If they impch convicted. Isnt that also a concession that a president can be criminally prosecuted for an official act because a president can be impeached for an official act. Are conceding that president can be criminally prosecuted, doesnt that narrow the issue before us to can a president be impeached im sorry, can a president be prosecuted without first being impeached and convicted . All your arguments fall away, your separation of powers and pl away if you concede that a president can be criminally prosecuted under certain circumstances . Article 2, section 1 has interpreted [indiscernible] article 3, lack of jurisdiction in examination of the president s official acts. Can is impeached and convicted. There is exception to that principle in. The constitution gives you other and framers were most concerned that the president wouldnt be impeached, what they were concerned was politically motivated but they didnt say the president can never be prosecuted. They created a narrow exception. Would not absolute immunity that the judiciary can hear criminal prosecution under any circumstances, you are saying one specific circumstance does that mean there is absolute immunity . The constitution sets up a strong principle and very narrow exception and. It seems to me that once you concede that president s can be prosecuted under some circumstances, your separation of powers argument falls away and the are narrowed to are you correct in your interpretation of the impeachment judgment clause. Does the impeachment judgment clause actually say what you say it does. I respectfully and strong principle in marbury versus madison, you cant sit in judgment bec■se he can do it whenever we want to. He said they are never examined by the courts. That is asking the larger question whether there is larger immunity for criminal prosecution for official acts or looking on aotn tosays look to e allegations and take those as true and whether or not we should be looking at official acts. ■a when people were not prosecuted, not everybody goes through a impeachment proceeding before they t only subordinate officers. And points out very clearly, the framers in the Constitutional Convention clearly contemplated that would be mandatory. He would have to be convicted. Deals with bribery, treason and high crimes and misdemeanor. And high crimes and misdemeanors basically cover anything that the u. S. Senate makes a political judgment and justifies from removing him from office. Does not make political judgments to a charge. I think it has no basis. Where the current incumbent of presidency and number one political opponent. What the impeachment judgment clause is designed to do and limit itself to certain acts and then thereof and impeached and convicted thereafter could be a prosecution. But not everybody goes through that process. But not everybody has to go through that process. Prosecutors later on can come into information and evidence after they investigated to make determinations about what they would like to prosecute. They are not confined to the impeachment judgment clause. [indiscernible] you have repeated in nixon versus fitzgerald and reaffirmed in trump about the unique nature of that office. And there cut under president nixon where there is pardon given, there is an assumption that you could be prosecuted because why enter into those particular acts. Those are purely. Clinton versus jones that president clinton had admitted for not being that was private ndt. The president isnt immune for private conduct but for official acts. And pardon of president nixon. President nixon was accused of a wide range of private conduct and facing potential indictment. That is purely pvate nd we go to the indictment they are they are alleging this is prite not official acts. Why dont you speak to that because we have to look to the broader question and as well as the indictment [indiscernible] and return to the alleged motive or purpose. And alleging purely private conduct and engaged a strong line of Supreme Court hi circuit distinguished of how you are committing the acts. It strongly reenforces. And going back to marbury versus madison the nature of the act itself. And its an objective. And use the word objective context. It does not turn on the purpose or motive. And this court properly rejected. And bradley against fisher and spalding and it is the strongest [. [indiscernible] well give you what you need, with respect to the actual indictment, it does not gloss over and put it in terms of what you are describing. And what has gone through a grand jury process unlike the impeachment judgment clause, how do we look at those particular acts. Clear guidance in nixon against fitzgerald. President nixon terminated a whistleblower and came into court and said this is not subject to immunity and the court said we are not looking at that level of detail and the acs and said the specificity is conducting the business. Similar here, if you look at the indictment, five classes of conduct which is alleged which was official conduct meeting with the u. S. Department of justice who should be the officer. You said many of which. All of which. One exception is speech and. [indiscernible] and President Trumps tweets, the Second Circuit held that it was an official channel ofs Government Communication and under the objective all that speech is obviously. And meetings with the department of justice. And that was in the heartland of article 2, section 3 to communicate with congress. Let me ask you [indiscernible] i dont believe you were counsel then b about the confessions in the first impe impeachment should be [indiscernible] when he would be subject. Trump against vance and criminal subpoena for tax that predated trumps time in office and concession that he could be subject to prosecution. As for the impeachment brief that they cited in their brief, they said we have a judicial process in this country, period. We have an investigative officer is immeund. And its that there is a quote in the congressional record in■. Which your client said through counsel, no former Office Holder is immune investigation. Well, that may be true subordinate officers but the president , he is immune unless he is impeached and convicted. He was president at the time that no former Office Holder iss there is no need to vote for impeachment because we have thiy senators relied on that voting to acquit. [indiscernible] what motivated senators votes. [indiscernible] took the position or your client impeachment proceeding that there would be an option for criminal prosecution later and its in the congressional record you change your position . I believe there was a distinction and the investigative process that was the quote i just read. Whatever concession that may have been made would not have raised resjudicata. It is consistent with the notion that defense including president ial immunity including separation of powers, couldnt be raised. There couldnt be a criminal process and defenses could be raised is pretty■■ straightforward. There is no such thing as no concession in those proceedings what the District Court did in this case that no president is criminally immune from criminal prosecution. I dont think it is there in the congressional record. Let me go back and you isolated that one sentence. Isnt that marbury versus madison has distinguished between discretionary official acts and ministerial which they mean imposed by law and its the latter one in which he be held liable . And i want you i want you to address u. S. V. Johnson and the commonwealth of virginia. The first one deals with the speech and debate clause. The supreme essence, 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, and then in the commonwealth of virginia you had the judge who had in charge with a crime under which you could not discriminate in picking juries based on rape. My reading of that case is 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 youre the man on the street, the president , whether in that case you are the judge you can be held criminally libel. And thats how i read, if not marbury, the progeny that is cant stop an official act. You have to say was it discretionary official act or ministerial. I agree with that characterization. I think the distinction is present in marbury. What i would respond that exteion has never been for good reason. For over 200 years the court held that we cant sit in judgment over the president s official acts under any circumstances. We dont have any mr. Sauer its never arisen at every civil context, what they said what jeff sus teus marshall is is never examable. There would be n■oproceeding we president did this and well sit in judgment directly over that. Thats reinforced by mississippi swanson. Where the courts hold we cant even enjoin or declare a judgment for the president i official acts. The difference between ministerial and discretionary has been held totally with respect to subordinate offic ma. If you look at the indictment in this case, nothing alleged against President Trump could be described as ministerial. I dont know where t rgued that if you are talking about responding to widespread allegations of fraud, abuse, and misfeesance in a president i elect■gion,v tryingo find out how to respond it to that. Matters that have nature not ministerial. Even if that distinction goes all the way up, it wouldnt save the indictment here. Why isnt it ministerial . His constitutional duty to take care that the laws be faithfully executed requires him to follow those laws, every one of them . Oe take care laws, carrying out ones duties in take care laws are discretionary. Hes administerial act in marbury is delivering a seal when requested. There is a separate statute what they emphasize, the kansas city had these two the secretary of state had these two hats on. On the other hand, the original statute had imposed these ministerial duties that had to do with record keeping. You got a land deed thats got a seal on it. There is no discretion at all. When you are talking about the take care clause, there is no statute that could impose on the president a mandatory the notion that when the president s meeting with the department of justice, we should investigate and enforce federal fraud statutes, thats ministerial strikes me as insupportable. I think youre missing what im asking. Judge henderson i think its paradoxical to say that his constitutional duty to take care that the laws be faithfully alle criminal laws. We are at the motion tsmiss stage. The government has charged the specific criminal laws. We have to assume they are true. Mr. Sauer my response would be to emphasize what chief justice said marbury. Judge henderson i thought you agreed with me we have gotten beyond marbury in the sense that official acts has been subdivided into discretionary and duty bound or ministerial. And in the ministerial or duty bound, at least with respect to legislative even legislators and judges, they have been criminally held criminally libel. Thats in the face, at least with respect to the legislators, of an explicit constitutional privilege. Mr. Sauer ex parte virginia expressing on the ministerial distinction. What johnson says is it doesnt say, hey, when you were doing these other things they were ministerial. These were not legislative acts. It draws a distinction between legislative and nonlegislative acts. Also i think thats the right reading of the ex parte virginia. They go on to say judicial act. The argument that pick ago jury i dont believe they use the word to my recollection ministerial. Judge henderson they were criminal acts. Pick ago jury based on base is a criminal act. Whatever johnson did, i think it was the very same statute fraud against the United States, that is before us today. Mr. Sauer the distinction in those cases is between in the judicial legislative its between legislative acts and nonlegislative acts. The distinction in ex parte virgin■ ia and nonjudicial acts. That phrase is used. Here its president ial acts and nonpresident ial acts. And everything in the indictment is a president ial act. May i. There are aber of precedents or cases in which the Supreme Court has reviewed actions by the president. The case of youngstown, where the Supreme Court reviewed hair are you trumans seizure of the steel mills during the korean of little bahrain, where chief Justice Marshall reviewed the actions of president adams when he seized ■ai vessels. Trump vs. Hawaii was President Trumps order restricting entry of the United States of nationals from certain foreign countries. Judge pan how does that square with your position that the judiciary can never review executive action . Mr. Sauer all those cases fall scarily within the establishment of ex parte young where the judicial can issud officers judge pan these are president s. Harry truman was the president when he seized the steel mill. How does that comport with your theory . Mr. Sauer it was an injunction against the secretary. The court has no jurisdiction to do that. It cannot enter strongly indicates that the court cant judge pan review president ial action if on paper they direct their judgment to a subordinate officer. Is that what youre saying . These are president ial actions. Mr. Sauer the court can enjoy the actions of subordinate officers that violate the constitution. Ex parte judge pan im asking you a different question. These are president ial decision, president ial actions. Youre saying that the court can review president ial actions as long as when they issue the judgment they issue it to subordinate. Mr. Sauer directly sit in judgment. Its official. Its been. Youre using the impeachment judgment clause as a negative implications with respect to the civilian officer or president , of course, has to be impeached and convicted and nevertheless thereafter. Judge childs if there is an acquittal, how are you using it in that regard . Sometimes particularly in this case the acquittal of jurisdictt actually trying the merits of the case. Mr. Sauer the judgment clause does distinguish between these who are marriage related officials the same thing comes up in criminalination that is acquitted does not necessarily reflect an actual determination that they are not factually guilty. Th is■m the in the o. L. C. Kwrepl membero they addressed that tkefrplgser determination often reflects things distinct from the merits. That doesnt undermine the double jeopardy of the impeach judgment clause. Improperly appointed. Ith do you have a position there . Mr. Sauer a persuasive brief. We have not raised it in this case. It races verytions. We havent raised it at this time. The effect of if w determs are official or private, i want to stay away from that, im going to say ministerial or discretionary. Judge henderson and it was tere seeker versus Office Holder, what is your position about would we have to remand it . To the district judge to decide in the first instance whether these various the four points that the defense has made against imposinggs■n criminal liability hinge on whether the acts are ministerial, discretionary, official, private, or however you want to characterize it. Mr. Sauer i use the phrase clinton Vice President pence jones, purely private conduct is what can be subject to judicial process after a presint in response to your question, our principal position you can look at this indictment it allegation official acts and it be d we acknowledge the District Court didnt reach that issue. The court has the discretion to remand to the District Court for the of criminal immunity in the first instance. We admit that would be natural. If the court holds that there is president ial immunity, which it should, remand to the District Court to say go through the indictment and or else hold factual findingsde the conduct d in this case. The court has the discretion to do that. That would be natural course. If there arequestions. I have one more question. Judge pan under the framework established, discussed in nixon versus fitzgerald, we are supposed to conduct a balancing test where we balance the neal for the asserted immunity versus other public interests. I see you as trying to represent a need for the executive to have ismmtate executive functions. The ability to act without hesitation. To be fearless. To make decisionmakingk3thout bg inhibited by fear of criminal prosecution. It seems to me there are some other article 2 interests here that are counter vailing. For example, under the article 2 there is an executiv■e investinglause. There is an interest of the executive branch as an institution to have constitutional executive power vest in a newly elected president. Theres also an executive interest a institution in Law Enforcement and enforcing criminal laws. So it seems to me if we are weighing executive interests versus public interests, public interests in things like the integrity of an election, that President Trumps position is not fully aligned with the institutional interests of executive branch and in this balancing test that weakens the executive power that hes trying to assert. Mr. Sauer three things in response. Nixon Vice President pence fits gerald emphasizes the most compelling situation how is the considerations were rooted in the separa■ on of is the rendering of the executive branch official unduel cautious in the exercise of idly controversial decision that is come up all the time f a president has to look over her shoulder or his shoulder every time he makes a controversial decision, after i leaving office if i go to jail my political opponents take power that dampens the ability of the president. Judge pan i understand thats your position. What about other article 2 interests. Thats one interest. There are other article 2 interests in play here, too, 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 . Mr. Sauer to the effect of court balance, go back to versu. To the extent the court reaching the balance of the considerations outweighed by the sort of republic chattering consequences of subjecting our chief executives in an endless cycle of prosecution once they leaf office. The founders were very much against that. They were deeply concerned in that. You see that in hamiltons writings in federal 67. And madison is interested in federalist 47. Thats the original meaning of the constitution. Do you think it occurred to me. You think we should take any cog anstkapbs of the wrote cog af the fact when they wrote that George Washington was the president. Judge henderson strong executive. Congress was brand new. Everything else was brand new. Things have balanced out. We have a strong congress. We have a strong judiciary. And we have a strong president. Mr. Sauer if you look at the writings of the founders they were looking past the presidency of George Washington. An iconic figure. Looking past the president of George Washing to future presidencies. They correctly anticipated the nation might they were deeply concerned about the nation would devolve into factions. Immediately when you get to adams and jefferson they devolve into factions. They looked past that presidency to the future of the republic. A tradition that served for 234 years until last year when it was shattered by the indictment of President Trump. If the court has no further questions i would ask the court to reverse. If the court rules against us ie court stay its mandate to allow us to seek further review. Thank you, your honor. Judge childs mr. Pearce. Mr. Pearce good morning. May it please the court. Never in our nations history has a from criminal consideration extends beyond his time in office. The president has a unique constitutional role. He is not above the law. Separation of powers principles, constitutional text, history, precedent, and other immunity doctrines all point to the conclusion that a former president enjoys no immunity from criminal prosecution. At a minimum, this case is allee conspired to overturn the results of a president ial election, is not the place to recognize some novel form of criminal immunity. 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 courts in s after midland adds fault did allude to a type of separation of pewers powers claim involving president ial immunity, i think judge henderson pointed out the Supreme Court itself has acknowledged that this idea of an explicit guarantee is more of a suggestion than some sort of statutory prescription. Theres been no cases since then that have actually used that word suggestion to follow up on that line of thinking. Mr. Pearce within the Supreme Court, i dont believe there have been cases, but certainly this court in cisneros as well as cases post midland asphalt like rostenkowski, and tkuren burger have recognized this type when you are talking about immunity is something for which a collateral order Appellate Jurisdiction isre are also other circuits. I think first, second, and 10 that keep following that line of thinking with respect to midland asphalt it requires an explicit constitutional or statutory language that case sa eus you cannot be tried. Mr. Pearce two responses. In cases like cisneros this court has spoken otherwise. I think the only one there is the first circuits decision in joseph where it was the case of a judge seek ago criminal raise seeking a criminal immunity defense to a criminal prosecution. As this court acknowledged in both rostenkowski and duren burger it didnt acknowledge. The court there talked about claiborne hastings which are ninth circuit and 11th circuit cases. Judge easterbrook in his shock opinion noted when it deals with a personal immunity like that its different than the transactional imimmunities considered in the Second Circuit cases. At the end of theof a small poin ground between us and the defendant, we do think with respect to jurisdiction there is a little bit of a different inquiry with respect to a president. We dont think that carries over to the merits in the least. I think the United States versus nixon is the perfect example of that. There the court said it would be unseemly to hold the president to require president to go into contempt, nonetheless reaching the merits rejected presen executive privilege claim. And required that you dont see a distinction on the civil versus crimal context. Mr. Pearce i dont. Rose said as much here when talking about civil encrime and criminal with respect to speech and debate. We strongly disagree that it hey of the reasons that judge pan set out w respect to the immunity, given the language in rose, that would supply basis for this court to claim. Why arent you taking the position we should dismiss this appeal because its interlocutory, doesnt that advance your interests . Mr. Pearce our interests are twofold. United s doing justice. And to move promptly to satisfy and vindicate the publics and defendants interests in a prompt resolution of this trial. But doing justice means getting the law right. Its our view that even if a dismissal on jurisdiction might move this case faster, thats hard to know, we shus skwr us dont think thats the right aak thats the right analysis. W line of cases, including cramer vs. Gates and American Hospital association versus azar, it says we can assume hypothetical statutory jurisdiction and reach the merits of a case. Judge pan statutory jurisdiction being continues teupbgt from art eugle 3 which we could never assume. That implicates the power of the court to act. If we had discretioa versus just dismissing this case under midland asphalt, which is a whis that this appeal is interlocutory, and it does not fall under the collateral order doctrine, how should we determine how to exercise that jurisdiction about whether or not we should reach the merits . Mr. Pearce i think in the American Hospital decision, t 2020 decision, the court said the formulation was Something Like we are doubtful as to our jurisdiction, but nonetheless invoking the line of cases you just described went to decide the merits. We would urge the court 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 reach the merits. Judge childs doesnt that lead to a hypothetical decision . Mr. Pearce no. Judge childs the Supreme Court said that. Mr. The steelco is the leading Supreme Court decision. Some courts including this court, has devised a hypothetical statutory jurisdiction doctrine. If this court were to dismiss for lack of jurisdiction and then say, nonetheless as an alternative holding heres how we would come out on the merits, that i think would be improper. And i that is what i understand oversight brief to be suggesting on page 20 of its previous. I understand the hypothetical piece to allow the court to say this is hard. There might be arguments on both sides. We think that there is we assume hypothetical statutory juries d. , we move forward. Jurisdiction. We move order. Let me ask you about marburys whats your interpretation of its progeny or the case itself . Mr. Pearce our interpretation is much closer in line with what i think i heard judge pan setting out. Similar to yours. It certainly does not ecorrect an unreviewable power for the presidency. The prime example that have is a the youngstown case. That was is president truman closing the steel mills. The court coming in and reviewing that. We see that all the way through to the president. Its hard to see any world in which the court just says, we cant intervene here. We do see the courts, judge henderson, the distinction between ministerial and discretionary acts. Compliance with the law is not discretionary call. It is something that i fully endorse or agree with the idea of the paradox of a president s on the one hand having article 2 take care of the responsibility. On the other hand, seeing the laws as compliance with the law as optional. Judge henderson how do we write an opinion that would stop floodgates . Your predecessors in their o. L. C. Opinions recognize that unavoidably political. Mr. Pearce a couple of responses. For one, of cours was with respect to a sitting president. The analysis is extraordinarily different with respect to a former president. Which o. L. C. In that very same judge henderson with respect to being necessarily political. Mr. Hink there is a political process which is impeachment, we can talk about that. But there is a Legal Process which is decidedly not political. That is a process which has the kinds of safeguards that a couple of members of the court here have already referred to. We are talking about prosecutors who follow strict codes. And presumed to act withurors. And this court of standing article 3 Court Standing above t i want to pushback a little bit against this idea of watergate era, 50 years ago, has there been widespread societal recognition, including by president s and the executive branch, that a former president is subject to criminal prosecution. Nixon was not about privateingso interfere with a f. B. I. Investigation. He accepts a pardon understanding that after having resigned i think that undermines this impeachment first argument. After nixon, we then see a series of independent and special prosecutors investigating a range of different types of conduct. You saw independents p epbl counsel lawrenceal the irancontra affair. The department invokes in his reply brief in chapter 27 of that report, the independent coun president reagan was subject to prosecution. And says, but we didnt get there evidentiary. Not that we sthaut there was immune thought there was immunity. Thats continued to present. This notion we are going to see a floodgate careful investigations and the in the clinton era didnt result in any charges. The fact that this doesnt refle 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 a sitting president has, with private individuals and using the levers of power, sought to fundamentally subvert the democratic republic and the electoral system. Frankly, if that fact pattern arises again, it would be awfully scary if there werent some sort of mechanism by which to reach that criminally. In your brief you raised some sort of lesser immunity. Want to speak to that . Mr. Pearce i do. We dont think that comes into play here. I think the point was in some sort of more challenging cases it that where a president is operating under extraordinary time pressure has to make a very difficult, National Security ty of decision. Do i go in and commit this order the drone strike under these circumstances . A president will often have a cadre of lawyers to advise him or her. The lawyers say, madam in two months. Thats not going to be enough in that situation. If there were a drone strike, civilians were killed, that theyre wretically could be subject to some theoretically could be subject to some court of prosecution as murder. That might be a place which the court would properly recognize some kind of immunity. Thats nothing like what we have here. I take the former brief discussing the vesting clause to talk the nature of charges when they focus on, again, subverting the electoral process. At a minimum there should be no type of immunity that covers that. Judge pan are you saying it should be a case by case balancing in how does this work as a Legal Standard . Mr. Pearce we think it should be just be as the distrbgt court held, a balancing under fitzgerald. Thats our view. You start with this question. What are the burdens against the presidency and what are the interestso the further the answer to that question under fitzgerald we think the burdens my friend talks about on the other side are overstated. Im happy to describe why. We think the interests publics interest in an ongoing should be an congressional ad rule that a former president is subject to a criminal prosecution. Ibing in response to judge childs questions, in a particular case might there be some extraordinary circumstance where a president , a■ former invoke an immunity . Maybe. I dont think the court has to reach that there. I think the court could write an ioin taoufrt allegations we take as true, there is no reason to recognize that here. I dont think it needs tocase a. I think the court can reserve that question to the extent it gives one pause about a president in future situations. 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 the judge with respect to president ialute immur no criminal prosecution of official acts versus looking at this indictment and accepting as true the allat mr. Pearce we have a strong preference the court adopts the former. As the distrbgt court did which is to say based on questions of separation of powers, of constitutional text,isry precedent is there immunity for a former president . We think the answer to that is no for all the reasons we put in the brief. Here. Candidly, i think if the court gets to that second question, there are hard questions about the nature of official acts. As i think judge pans hypothetical described, what kind of world are we living in if, as i understoodnd on the other side to say here, a president orders his seal team to assassinate a political rivan impeachment. Not a criminal act. President sells a pardon, resigns, or not impeached, not a crime. I think that is extraordinarily frightening future. That is the kind we are talking about a balancing and weighing of the interests, i think that ordinarily heavily in the courts consideration. Judge childs lete ask you. How does it either judge henderson how does it bind us . Mr. Pearce it formally has no application at all because very early on if the opinion the court says we are not dealing with any questions about context. In the criminal i tend to agree with my friend on the other side in many respects it does reinforce the nature of the fitzgerald civil outer it says you dont look at intent or you dont look at purpose, context plays a more Important Role than the content of communications. I think the significant change is the acknowledgement of looking at a president whether that president is acting in his or her role as Office Seeker or Office Holder. Again, to go back to my response to judge childs question, may change the nature of whether certain things are or are not official acts in the indictment, we just think thats the wrong paradigm to use. We think that would be inconsistent with fitzgeralds reasoning. Also just irreconcilable with nature how criminal law works. To say we are not going to take into account the intent, there are plenty of acts every day. For example, if i were to encourage someone not to testify at trial because i wanted go on a hike with that person. Not a crime. If i encourage someone not to go on a hike because their testimony encourage them to skip their trial testimony because their testimony was going to incriminate me. The same underlying. When you map that on to the president ial context you come up with some of the frightening hypotheticals where as long as something is plausibly official, even if it involves assassinating a prominent critic or business rival, that would seem to then be exempt, potentially, from criminal prosecution. We wouldnt concedee need to lie in. I think we would advance plenty of arguments below. But for those arguments themselves would create satellite litigation, an additional reason not to go down the route. Judge childs thinking about your answer about potentially not looking at motive and intefpbt, when there is a criminal prosecution, that mens ray and intent is part of the statute charge. Mr. Pearce precisely. Thats why it wouldnt make sense to come in and use this non as i understand how fitzgerald outer perimeter standard would work, it can say those types of official acts, official conduct, in a is something from which the 3rez is immune president is immune. You dont get to that second question of, well, did that person act with mens at least under a theory where its not available at trial, then there is no way to reach that conduct. Looking at this indictment, back to judge hendersons question, 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. Dous blessinggame for that . Mr. Pearce if this Court Decides the case the way the District Court did, i dont think it has any role to play at all. There is no question of whether was this act official, or these sets of allegations official. The question is, based on a fitzgerald analysis, history, precedents, etc. Is there any quantum of immunity for a former president . We think the answer to that question is no. There is no reason as the District Court also found to turn to the indictment and consider this outer perimeter, civil outer perimeter. Judge henderson how about mr. Pearce if you dont there are a lot of different ways this court could not decide it that way. I think to pick up on my response to judge childs, we certainly stand behind our view in the brief that some substantial number of allegations w outside of an outer perimeter. That i think is enough to affirm. I think either party are urging the court at that point to send the case back to the District Court. I think that would create a series of challenging questions that i mentioned earlier. What are the evidentiary evidence could potentially come in . It would be our strong vw, the court followed that route, which we urge the court not to, to make it clear immunity is an off, off switch. This is the immunity appeal. Lq the court says we affirm, we send it back, there is no immunity, then other things become evidentiary questions or questions of jury instructions, which any appeal is then an appeal from the final judgment if any final judgment. The immunity defense is never lost . Mr. Pearce i dont think its immunity at that point. What i just described, there is no immunity. There may be some types of other challenges as evident comes in at trial. 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. Judge pan since President Trump concedes that a president can be criminally prosecuted under some circumstances, he says that that is true only if he is first impeached and convicted by ee that this appeal largely boils down to whether hes correct in his interpretation of the impeach interpretation of the pao eupl etchment judgment clause . If hes correct includes this impeachment first rule, then he wins. If hes wrong, if we think t jus not contain an impeachment first rule, then he loses. Mr. Pearce i think thats right. The defendants theory over the course of this litigation has evolved. Now before this court i understand the argument to be principally the principal submission to be as you just described. What we call in our brief the Condition Precedent argument. That there is only liability, criminal liability for a formers been impeached and convicted. That is wrong for textual, structural, historical reasons. And a host of practical ones. One of which ill start with again to amplify the point. It would mean that if a former president engages in assassination, selling pardons, these kinds of things and isnt impe convicted, there is no accountability for that individual. That is frightening. To go back to some of the textual and historic a and structural. My friend on the other side suggests this is what the founders were talking about and worried about. I think its entirely an inaccurate representation of the founding era history. There is no discussion of the impeachment judgment clause, which i take thepleled textual o be, what the impeachment judgment clause did was two things. It constrained the sanctions that congress could place on an impaoefpd and convicted officer, not overwhelm a president. Any kind of officer, to removal or disqualification. Then it made clear that that impeachment did not have ba subl prosecution. You would think that if there was this kind of impeachment first requirement, and conviction first, you might actually find something somewhere in the sources, the framing, convention in philadelphia, the ratification discussions early history. There is nothing of that. We cited certain things in our brief from james wilson, from edmond representative dana that say this. Justice story. I dont hear the defendant to offer anything other than hamilton. All hamilton was describing was the undisputed point the sitting president cant be subject. Until that sitting president is no longer in office. Whether the removal in office is through impeoplement and conviction or the end of the term. As well i want to quickly make. The distrbgt court made this. If this rule were right, that would put District Court made this. Hat would put significant separation of powers problem on its own. The executive branch would only be able to prosecute someone if congress had acted. There are all sorts of Reasons Congress wont act for one they never believed it was required. Andn certain instances they decide they dont have jurisdiction. Many of the members of congressh respect to the defendants second impeachment. Thank you very much. Mr. Sauer i want to make three points to the court to the one is he used the phrase above the law. Immunity doctrine for criminal immunity would place the president above the law. I direct the courts attention to what the Supreme Court said in kwreubgson nixon against filled gerald. Immunity sets the official above the law as, quote, rhetorically chilling but holy un wholly unjustified. The impeachment judgment clause, these are the foundation and fundamental law of our country. If the president s immunity is determined on that. That is more rhetoric than reality is what the Supreme Court stayed in nixon against fitzgerald. When it comes to the request question, the indictment has official acts. It does not allege President Trump did anything wrong after he left office. It focuses solely on on wt he■m took in office. We are dealing with official acts here. Then finally, i would address judge henderson your question about the floodgates. I tie that to what my opposing counsel said about a socalled frightening future. The frightening future he allegations where president s are seldom if prosecuted because they have to be impeached and convicted first. Thats 235 years. Thats not frightening, thats our republic. What hes forecasting is the floodgates will open. We have the prosecution of the chief political opponent who is wig poll. Upcoming next year. And being propertied by the administration that hes seeking to replace. That is the frightening future. That is taylor tailormade to shake our republic. Skwrulg khao euldz do you have the impeachment judgment clause indicate, impeachment, then conviction. But then president either resigns, is removed, and then ia different crime. Can that happen . Is there immunity there . Mr. Sauer not sure i understand the hypothetical. Judge childs if you are resting on there must be impeachment and conviction and for one set of crimes, then later on the president either is removed from office or resigns, and later on there is a prosecution for something immunity for that later crime . Mr. Sauer yes, thats the better reason. Its not presented in this case. Because we have a close match. There was an acquittal. The strongest case for double jeopardy and the facts alleged in the indictment. Judge childs you just made a statement about hes only beingn office. Thats why im asking about leaving office and then there after being prosecuted for so mr. Sauer the point is the constitution. Best reading would be he has to be impeached and convicted for the thing he subsequently 3rr9ed. Hes impaoefptd and convicted and charge him with another official act, thats what chief justice says in marbury would govern. Its not presented here. But that would be my answer. Judge pan your position is, if President Trump had been convicted after his impeachment trial on inciting an insurrection, he was convicted, this prosecution would be entirely proper. Mr. Sauer i would say if he were impaoefpld and convicted seupl and similar conduct, that would authorization judge pan is that a yes . I think you said iyo for incitef insurrection is based on the same related conduct as that which is in the indictment. Mr. Sauer i agree. Judge pan if he had been convicted by the senate, then this prosecution would be entirely proper. Correct . I would not phrase it that way. There are lots of other problems we raised. Judge pan t impeachment judgment clause, if he had been convict by the senate when he was impaoefpd for incitement itch pao epd for in impeached for incitement of insurrection, this prosecution would be properly brought. ■r mr. Sauer a prosecution. Secutir problems. Just want to be clear about that. Think 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 prorbly properly prosecute him for that same or related conduct. Yes or no . Mr. Sauer potentially, provided they qualified with all other legal documentviolated in this case. Judge pan im asking you under your interpretation of the impeachment judgment clause, is mr. Sauer i stand on my prior answer. Judge pan i understand there might be other reasons. Im saying based on your interpretation of the clause this prosecution would be properly brought. Mr. Sauer i wou■eld not s this prosecution. Very clear about that. Judge pan prosecution based on same or related conduct. Mr. Sauer thisto t the impeacht judgment clause authorizes the prosecution of a president whos been impaoefpld and convicted by the senate judge pan say a president was impeached and convicted on a charge of incitement of insur correction that is2 under ection that sunned the same allegations as a criminal indictment. Hes convicted. Then the government could bring a prosecution for the same or related conduct, correct . Mr. Sauer i disagree. Judge pan then that means that the conduct, that same or related, even if its official, he could be prosecuted for it, correct . Thank you. Judge childs my question goes to after the fact. The reason i state that even though you are challenging these actions are occurring while president , the District Courts decision was that there is no president ial immunity from prosecution for official acts. It doesnt put a time frame in there. Thats why im going to beyond your investigation, your prosecution might not come until later. After e■ pas left office. Are you telling us that we are limited to a time frame in answering this question . Mr. Sauer i think the time frame is set forth by chief justice in madison where he says never. Unless there is that one 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 judge childs that assume an impeachment proceeding occurred. If there is not one, we discussed earlier, not all officials go through that process. Thats a judgment call as to whether that process would be brought. Mr. Sauer we have two arguments. If there is no impeachment ever and no conviction, and the official acts are immune. Period. Further, the impeachment judgment clause incorporates a Doctrine Document of double jeopardy that prohibits it especially in the case of acquittal. Those are reinforcing doctrines set r the in the constitution set forth in the constitution. No further