Attack. This is an hour. United states of america versus donald j. Tmp. [indiscernible] good morning. Before you get started can i 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. Sove though you belvehere is jurisdiction with respect to the collateral order doctrine, how do you place tt in line with the asphalt case which specifically says in a crimil case, your jurisdiction needs to stem from the constitution the explicit as well in statutory l . We have three responses. If you look at the language that Justice Scalia discussed, a situation where the right is one, the legal and practical value would be destroyed and these claims of absolute immunity falls within that discrimination explicitly stating that and dont have communication with ytng in the statute. Disagree. The doctrine ariseesro article 2 and section 1. It is enrced by the impeachment judgmentlae which refers to trial. Wallace facility is talking about a tuion where the right not to be tried is diinguishishing and is dismissal of an indicen we have the trial of any of the clauses in which the supreme has found ierlock can you tower jurisdiction. On the immugs midland asphalt n president ial the argument situations where the court said lo, ere is a speech and debate claimnd another claim that doesnt derive fm the constitution but closely akin in the double jeopardyri scenario you have twice put in jeopardy so you cannot be tried ain in that regard. In the speech and date says shall not be questioned, so the language was explicit but doesnt sayx plies italy. One is the plain language of impeachment clause. [indiscernible] impeachment and judgment clause. And this court expressly hel this is not magic a got to say right there in the context that this h a right to be tried. And explicitly the right not to tried. And the language that by midland asphalt is the situation where there is the appeal and legal and pctal value is destroyed. And there are similar language in cisneros. It has to be [indiscernible] im not awaref that. Digital equipment. I thi tt is an excellent point. And turning to thmets if i may, your hon, authorize the prosecution of a president for his official acts would open up a p doras box whichhis nation may never recover. Could george w. Bush be prosecuted for allegedly giving lse information to congress to induce the nation to go to war in iraq under false prese teensesou president obama for allegedly drone strikes targeting u. S. Citizens. Could can i explore the implic of what you are arguing . I understand your position that a president is immune from criminal prosecution from any official act that he takes a president , even if that ti is unlawful orncstitutional purpose, is that correct . If the president is convicted and impeached in a preeng that reflects widespread political consensus that would have plain language under the impeachment clause. So it seems to me therere lot of things that might not go through that process because it is quite a couple birr some rm ocess that has a lot of different people involved. So in your view, could a president self pardonr sell 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 . He 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 and he cant be prosut for that . As long as it is an official t. Private conduct in clint v jones could aresident Order Seal Team 6o assassinate a politicaril . He would have to be and be impeached and convicted. There would be no criminal prosution and no criminal liability for that . Chief jtices opinion and the plainanguage of the impeachment judgment clause presuppose what the founders i asked you a yes or no queson could a president who ordered seal team 6 to asssate a political rival could he be subject to criminal . If hwere 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 sed impeachment and conviction. What the 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 is what we see in that cas i asked you a series of hypothetical of criminalctions taken by a president and could be considered official acts and asked you would such a president be subject to criminal prosecution . Anyo answer, yes or no is no . I said qualiedes if he convicted and impeached. You are sina 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 cmunicating with Foreign Government is anfficial act. [iisrnible] because under the procedure that you concede he can be prosecuted if there is an impeachment and conviction by the senate. [indiscernible] you are cceding that the president can be criminally prosecut uer certain circumstances. If they are impeached and convicted. Isnt that also a concsi that a president can be criminally prosecuted for an official act because a president can be impeached for an official act. Unique circumstances. Ou are conceding that president ca be criminally prosecuted, doesnt that narrow the issue before us to can a president be impeached im sorry, can a prede be prosecuted without fir being impeached and convicted . All your arguments fall away, yourepation of powers fall away and policy arguments fall away if you concede that a president can be criminally prosecuted under certain circstces . Article 2, section 1 has interpreted [indiscernible] article 3, lack of jurisdiction in examination of the president s official acts. Can do so if he is impeached and convicted. There is exception to that principle in the impeachment clse. The constitution gives you other and framersermost concerned that t president ouldnt be impehe what they were concerned was politically motivated but they didnt say e president can never be prosecuted. They created a narrow exception. Ould you concede there i not absolute immunity tt the judiciary can hear criminal prosecution under any circumstances, you are saying on specific circumstance does that mean there is absolute immunity . The constitution sets ua strong principle and very narw exception and. It seems to me at once you concede that presintcan be prosecuted under some circumstances, your separation ofowers argument falls away an the issues before us are narrowedo e you correct in your interpretation of the pehment judgment clause. Does the impeame judgment clause actually say what you say it does. I respectfully and strong principle in marbury versus madison, you cant sit in judgment because he can do it enever 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 lookg on a motion to dismiss whh says look to the allegations and take those as truendhether or not we should be looking at official acts. When people were not preced, not everybody goes through a impeachnt proceeding before they get prosecuted. Only subordinate officer and points out very clearly, the frame i the constitutionalonntion clearly contemplated that would be mandatory. He would have to be impeached d convicted. Deals with bribery, treason and high crimes and miemeanor. And high crimes and misdemeanors basiclyover anything that the u. S. Senate makes a political judgment and justifiesrom 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 limi itself to certain acts and then thereof and impeached and convicted thereafter could be a osecution. But not everybody goes through that proce. But not everybody has go through tt process. Precors later onan come into information and evidenc after they investigated to make determinatnsbout what they would like to prosecute. They are not confined to the impeachment judgment cus [indiscernible] you have repeated in nixon rs fitzgerald and reaffirmed tmp about the unique nature of that office. And there is a dea cut under president nixon where there is pardon given, there ian assumption that you could be prosecuted because why enter into those particular acts. Those are purely. Clinton versus jones that president clintonad admitted for notei that was private conduct. The president isnt immune for private conduct but for official acts. And pardon of president nixon. President nixon was accusedf wide range of private conduct and finpotential indictment. That ipuly private conduct. Wh we go to thendictment they are they are alleging this is private conduct not official acts. Why dot u speak to that because we have to look to the oader question and as well as the indictment [indiscernible] and return to the alleged motive or purpose. An alleging purely private ndt and engaged for particular purposes and that is a strong line of Supreme Court this circuit distinguished of how you are committing the acts. It strongly reenforces. And in back to marbury versu 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 stngest [. [indiscernible] well give u what you need, with respecto e actual indictment, it does n gss over and put it in terms of what you are describing. And what has gone through a grand jury process unlike the impeachment judgment au, how do we look at those particular acts. Clear gdae in nixon against fzgald. President nixon terminated a whistleblower d came into court and said this is not subject to immunity and the cot id we are not looking at that level of deta and the alleged motive f tse acts and said the specificity is conducting t business. Similar here, if you look at the indictment, five classes of coucwhich 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 because there is speech and. [iisrnible] and President Trumps tet the son circuit held that it wasn official channel of Government Communication and under the objective all that speechs obviously. And meetings with the deparen of justice. And that was in t heartland of article 2, section 3 to communicate withgress. Let me ask you [indiscernible] ion believe you were unsel then but what about the confessions in the fst impeachment proceeding that impeachment should be [indiscernible] when he would be subject. Trump against vance and criminal subpoena fo tax records that predated ums time in office and concession that he could bsubject to prosecution. As for the ieachment brief that they cited in their brief, they said we have a judicial process in this country, peod we have an investigative that 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 from prosecuti. Investigation. Well, that may be true subordinate officers but the president , he is immune unless he ismpched and convicted. Heas president at the time that no former Office Holder is immune and the argument was there is no need to vote for impeachment becausee ve this backstop which is criminal prosecution and seems that many senatorseld on that voting to acquit. [iiscernible] what motivat senators votes. [indiscernible] tookhe position or your client did during the impeachment proceeding that there ulbe an option for imal prosecution later and its in the congressional record and what has changed owhdid you change your position . I bieve there was a distinction and t investigative process that was thquote i just read. Whatever concession that may have been made would not have raised resjudicata. It is consistent with the notn that defense including president ial iunity including separation of powers, couldnt be raised. There couldnt be a criminal ocess and defenses could be raised is pretty straightforward. There is no such thing as no concession in osproceedings what the District Court did in this case that no president s criminally immune from criminal prosecutio i dont think it is there in the congnal record. Let me go back and you isolated that one sentence. Isnt it true that marbury versus madon has distinguished between discretionary official acts andinterial which they mean imposed by l and its the latter one iwhich he can be held liable . And i want you i want you to address u. S. V johnson and the commonwealth of virginia. Thfirst one deals with the speech and debate clause. The Supreme Court said in essence, all of the evidence dealing with the speech and debate he can still be prosecuted, that is that ngressman, or i think it was conspiracy to defra, d then in the commonwealthf virginia you hadhe judge who had in charge with a crime under which yocould not discriminate in picking juries based on rape. My reading of that case is that the lanagthat you isolate in your rlyrief that it could just as easily be de, that is the choosing of the jury, a ministerl act by someone on the street. To me thatea when you have a duty that is imposed by law, picking a jury theyaiwas ministerial impose by l, whether youre the man on the street, the president ,hether in that case you are the judge you can be held criminally bel. And thats how i read, if not marbury, the progeny tt is you cant stop an fial act. You have to say was it scretionary official act or ministerial. Mr. Sauer i agree with tt characterization. I think the distinction is present in marbury. What i wou respond that extension has never been extended to the president , for good reason. For over 200 years t crt 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 until this case. If you look at every civil context, what they said what je sus teus marshall is is never examable. There would be no judicial proceeding where you can say the president did this and well sit in judgmt rectly over that. Thats reinforced by sssippi against swanson. Where the courtsolwe cant even enjoin or declare a judgntor the president in official acts. The difference between ministerial and discretionary has been held totally wit respect to subordinate officers. That goes back t marbury. If you look at the indictment in this case, nhi alleged against President Trump ul be described as ministerial. I dont know where the goveme argued that if you are tki about responding to widespread allegations of fraud, abuse, and misfeesance in a president ial election, trying to find out how to respond it to that. Matters that have nature not ministerial. Even if that distinio goes all the way up, it wouldnt save the indictment here. Why isnt it ministeri . His cstutional duty to take care that the laws be fthfully executed requires him to follow those laws, every one of them . Mr. Sar would say that the take care laws, carrying out ons 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 kans city had these two the secretary of stead these two hats on. On the other hand, the original statute had imposed these ministerial duties that had to do with record keeping. Yo got a land deed thats got a sealn. There is no discretion at all. When you are talking about the keare clause, there is no atute that could impose on the president a mandatory the notion that when the president s meing with the department of justice, we should investigate and enforce federal fraud statutes, thats ministerial strikes me as insupportab. Ihi youre missing what im ain judge henderson think its paradoxical to say that his constitutional duty to take care th the laws be faithfully execed allows him to violate criminal laws. We are at the motion tdismiss stage. The government has chargedhe specific criminal laws. We have to assume they are true. Mr. Sauer my response would b to emphasize what chief justice said marshall saidn marbury. Judge henderson i thought you agreed with me we have gotten beyond marbury in the sense that official as has been subdivided into dcretionary 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 leglars, of an explicit constitutiona privilege. Mr. Sauer ex rtvirginia expressing on the ministerial distinction. What johnson says is it doesnt say, hey, whenou 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 part virginia. They go to say judicial t. The argument that pick ago jury i dont believe they use the word to my recollection ministerial. Judge henderson they were criminal as. Pick ago jury based on base is criminal act. Whatever johns d, 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 ibeeen in the judicial case, jns legislative s between legislative acts and nonlegislative acts. The distinction in ex parte virginia is between judicial ac 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 aumber 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 korn war. Theres the case of little bahrain, where chief Justice Marshall reviewed thections of president adams when he seized certain vessels. Trump vs hawaii was President Trumps order restrictingnt of the United States of nationals from certain foreign unies. Judge pan how does that square with your position that the judiciary can never review executive action . Mr. Sauer all those cases fall scarilyithin the establishment of ex parte young where the dial can issue judgments against subordinate o