Attack. Th i an hour. United states of america versus donald j. Trump. [indiscernible] gd morni. Before you get started can i just get a couple of things on the record. Our jurisdiction was cllged by an amica. I do want to speak to you more about jurisdiction, because we still have to say we he 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 specificallyayin a criminal case, your jurisdiction nds to stem from the cstitution or the explicit as well in statutory law . We have three responses. If you look at the lanag that justicecalia discussed, a situation whereheight is one, the legal andractical value would be destroyed and these claims of absolut immunity falls within that discrimination explicitly statinghaand dont have communication wh anything in the statute. I disagree. The doctrine arisees from article 2 and section 1. It is reenforced by the impeachment judgment clause which referto trial. Wallace facility is talking about a situation where the right not to be ted is distinguishishing and is dismissal of an indictment. We have the trial of any of the clauses in which the supreme has found interlock can you ter jurisdiction. On the immugs midland asphalt not president ial the argument situations where the court said look, there is a spchnd debate claim and another claim that doesnt derive from the constitution but closely akin in theoue jeopardy trial scenario you have twiceut in jeopardy so you cannot be tried again in that regard. Inhepeech and debate says shall not be questioned, so the language was explicit t doesnt say ex applies italy. One is the plainanage of impeachment clause. [indiscernible] impeachment and jgmt clause. And this court eressly held this isot magic and got to say right there in the context that this has a right to be tried. And explicitly the right noto be tried. And theanage that byidland asphalt is the situation where there is the appeal and legal and practical value is destroyed. And there are sil language in cisneros. It has to be [indiscernible] im not aware of that. Digital equipment. I think that is an excellent point. And tning to the merits if i may, your honor, to authorize th prosecution of a president for his official acts would open up a pan doras box which this naon may never recover. Could georgw. Ush be prosecuted for allegedlyivg false information to congress to induce the nation to go to war iraq under false present teenses could president obama for allegedly drone strikes targeting u. S. Citizens. D can i explore the implications of what you are arguing . I understand your position that president ismme from criminal prosecution from any official act that he takes as president , en that action is unlawful or unconstitutional rpe, is that correct . If the presints convicted and ieaed in a proceeding that reflectsidespread 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 through that process because it is quite a couple birr somem process that has a lot of different people involved. So in your view, could a presidense pardon or 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 . 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 prosete and he cant be prosecuted for tha as long as it is an official act. Private conduct in clinton v. Jones cld president order seal am 6 to assassinate a political rival . He would have to be a b impeached and cvicted. There would be no criminal prosecution and no criminal liility for that . Chief justices opinion and th 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 to assassinate a politicaril could he be subject to criminal . If he were impeached a convicted. My answer is a qualifiedes. A political processaso would require impeachment and conviction by theene. In these exceptional caseshich the memo points out you would expect a speedy impeachment and conviction. What the founders were concerned about was what James Madison in federal lift 47. Theyermore concerned with th abuse opolitical purposes to disable and that he is what see in that case. I asked you a series of hypothetical of criminal actions taken by a psint and could be considered official acts d i asked you would such a president bsubject to criminal prosecution . And your answer, yes or nos no . I said qualified yes if he is convicd d impeached. You are saying a president could selfpardon sl litary secrets and seal team 6 t assassin a political rival . I may sail of pardons your brief says communicating with executive brancagcies and communicating with Foreign Governments is an official act. [indiscernible] because under the procur that you concede he can bprosecuted if there is an impeachment and conviction byhe senate. [iisrnible] you are conceding that the president can be criminally prosecuted under certain circumstances. If they arempched and convicted. Isnt thatlso a concession that a president can be criminally pseted for an official act because a president can be impeached for an official act. Unique circumstances you are conceding that esident can be criminally prosecuted, doesnt tt narrow the issue before u to can a president be impeached im sorry, can a president be prosecedithout first being impeached and convicted . All your argumentfa away, your separation of powers fall away and policy arguments fall away if yocoede that a president can be criminally prosecuted under certain circumstances . Article 2, section 1 has interpreted [indisrnle] article 3, lack of jurisdiction inxanation of the president s officia acts. Cano if he is impeached and convict. There is exception t that principlin the impeachment clause. 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 didntay the president can never be prosecuted. They created a narrow exceptio would you concede there is not absolute immunity that the juciary can hear criminal prosecution under any circumstances, you are sin 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 separaon of powers argument falls awa 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 say it does. I respectfully a strong principle in marry versus madison, you cantitn judgment because he can dit 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 a motion to dmi which says look to the allegations and take those as true and whether or not we should be looking at official acts. When people were not prosecuted, not everybody goes through a impeachment proceeding befo they get prosecuted. Only subordinate officers. And points out very clearly, the framers in the Constitutional Convention clearly contemplated that would be mandatory. Wld have to be impeaed and convicted. Deals with bribery, treason and highrimes and misdemeanor. And high crimes and misdemeanors basically cover anything that the u. S. Senate makes a political judgment and justifies from removinhifrom office. Oe not make political judgments to a charge. I think it has noasis. Where the current incumbent of presidency and number one political opponent. What the impeachment judgment clause is designed to do and limit itself to cta acts and then thereof and impeached and convicted theaer could be a prosecution. But not everod goes through that process. But noevybody has to go through that process prosecutors later on can come into informationnd evidence after they investigated to make determinations about what they would like to prosecute. They are not confined to the impeachment dgnt clause. [indiscernible] you have repeated in non versus fitzgerald and reaffirmed in trump about the unique nature of that office. And there is a deal cut under president nixon where the i pardon given, there is an assumption that you cod prosecuted because why enter into those particular acts. Thosere purely. Clinton versuson that president clinton had admitted fo not being that was prite conduct. The president isnt imme for private conduct but for officl acts. An pardon of psident nixon. Presennixon was accused of a wide range of private conduct and facing potential indictme. That is purely private couc when we go to the indictment they are th a alleging this is private conduct not official acts. Why dont you speak to that because we have to look to the broader question and as well as the indictment ndcernible] and return to the alleged motive or purpose and alleging purely prite conduct and engaged for particular purposesndhat is a strong line of Supreme Court this circuit distinguished of how you are committin the acts. It strongl reenforces. And going back to mbury versus madison the naref the act itself. And its an objective. And use the word objective context. It does not turn onhe purpose or motive. And this court properly rejected. And bradley against fishernd spalding and it is the strongest [. [indiscernible] well give you what you need, with respect to the actual indictntit does not gloss over and put it in terms of what you are dcring. And what has gone through a grandur process unlike the impeachment judgment clause, how do we ok at those particular acts. Clear guidance in nixon against fitzgerald. Pridt nixon terminated a whtleblower and came into court and said ts not subject to immunity and the court said we are not looking at that level of detail and the alleged motive for these acts and id the specificity is nducting the business. Similar here, you lk at the indictment, five classes of conduct which is alleged which s official conducteeting 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. [indiscernible] and prede trumps tweets, the Second Circuitel that it was an official anl of Government Communication and under the objective all that speech is obviously. D meetings with the department of justice. An that was in the heartland of article 2, section 3 to communicate with congress. Let me ask you [indiscernible] i dont believe you we counsel then but what about the confessions in the first impeachment proceeding th peachment should b [indiscernible] when he would be subject. Trump ainst vance and criminalubpoena for tax recos that predated trumps time in office and concession that he could be subject to precion. As for the impeachment brief that they cite in their brief, they said we he judicial process in this country, period. We have an investigative that no officer is immeund. And its that there is a quote the congressional record in which your client said through counsel, no former Office Holder is immune from prosecution. Investiti. Well, that may be true subordine ficers but the president , he is immune unless he is impeached and convict. He was president at the time that no former office hdeis immune and the argument was there ino need to vote for impeachment because we have this backstop which is criminal prosecution and seems that many senators relied on that voting to acquit. [indiscernible] what motivated senators votes. [indiscernible] ook the position or your client did during the impeachment proceeding that there would be an optionor criminal prosecution later and its in the congressionalecd and what has changed or why did you change your position . I believe there was a distinction and the investigative process thawa 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 seraon of powers, couldnt be raised. There couldnt be a cmil process and defenses could be raiseds pretty straightforward. There is no su thing as no concession in those proceedings what the District Court did in this case that no president is iminally immune from criminal prosecution. I dont think it is there in the congressional record. Let me go back and you isolated tt one sentence. Isnt it true that marbury versus madison has distinguished between discretiona oicial acts and ministerial which they an imposed by law and its the latter one in which he can be held liable . And i want u i want you to address u. S. V. Johnson and the commonwealth of virgia the first one deals with the speech and debate clause. Thsueme court said in sence, all of the evidence dealing with the speh and debate he can sll be prosecuted, th i that congressman, or i think it was conspicy to defraud, and then inhe commonwealth of virginia you had the judge who had in charge with a crime underhi you could not discriminate in picking juries bed on rape. My reading of that case is that the language that you isolate in your reply brief that it could justs 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, cking a jury they said was mistial imposed by law, whether yourthman on the street, the president , whether in that case you are the judge you can be held crinay libel. And thats how rd, if not marbury, t progeny that is you cant stop an official act. You have to say was it discretionary official act or ministerial. Mr. Sauer i agree with that characterization. Think the distinction is present in marbury. What i would respond that extension has never been extended tthpresident , 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 until this case. Ifou look at every civil context, what they said ha jeff sus teus marshall is is never examab. There would be no jicial proceeding where you can say the pridt did this and well sit in judgment directly over that. Thats reinforced by mississippi agait swanson. Where the courts hold we cant even enjoin or declare a judgment for the president in official acts. The difference between ministerial and discretionary has been heldotally with respect to subordinate officers. Thatoes back to marbury. Ifouook at the indictment in this case, nothing alleged against esent trump could be described as ministerial. I dont know where the government argued that if you are talking about responding to wispad allegations of fraud, us and misfeesance in a president ial election, trying to find out how to respond it to that. Matters that have nature not ministerial. Even ifhat distinction goes all the way up, it wouldnt save the indictment here. Why isnt it ministerial . His constitutional duty to take care that the la be faithfully executed requires hi to follow those laws, every one of them . Mr. Sauer i would say that the take care laws, carrying o ones duties in take care laws are dcretionary. Hes administerial actn marbury is delerg a seal when requested. Ther is a separate statute what they emphasize, the kansas city had these two the secretary of state had these two ha on. On the other hand,heriginal statute had imposed these ministerial duties tha had to do with record keeng 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 presint meeting with the department of justice, we should investigate d enforce federal fraud statutes, thatsinterial strikes me asnsupportable. I think youre missing what im asking. Jue henderson i think it paradoxical to say that his constitutional duty to takca that the laws be faithfully executed allows him to violate criminal laws. We are at the motion to dismiss stage. Thgornment has charged the specific criminal laws. We have to assume they are true. Mr. Sauer my spse would be to emphasize what chief justice said mshall said in marbury. Judge henderson i thought you re with me we have gotten beyondarry in the sense that official acts has been subdivided into discretionary anduty bound or ministerial. And in the ministeri o duty bound, at least with resct to legislative even legislators and judges, they have been criminally he criminally libel. Thats in the face, at least with respect to the legislators, of an explicit constitutional privilege. Mr. Sauer ex parte virginia exesng on the ministerial distinction. What johnson says idoesnt say, hey, when you were doing these other things eyere ministerial. Es were not legislativect it draws a distinction between legislativendonlegislative acts. So think thats the right reading ofhe ex parte virginia. They go on to say judicial act. The argume tt 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. Whever johnson did, i think it was t very same statute fraud againsthenited states, that is bor us today. Mr. Sauer the distinction in those cases is between in the judicial case, johnson legislative its between leslive acts and nonlegislative acts. The dtition in ex parte virginia is between judia acts and nonjudicial acts. That phrase ius. Here its president ialcts and nonpresident iaac. And everything in the indictment is a president ial act. May i. There are a number of precedents or cases in which the Supreme Court has reviewed actions by the president. The case ofoustown, where the suprem court reviewed hair are you trumans seizure of the steel mills during the korean war. Therethcase of little bahrain, where chief Justice Marshall revieweth actions of president adams wn seized certain vessels. Trump vs. Hawaii was President Trumps oerestricting 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 . Sauer all those cases fall scarily within the establishment of ex parte young wherehe judicial can issue judgments againstubordinate officers judge pan hese are president s. Harry trumanas the president when he seized the steel mill. How does that comport with your theo . Mr. Sauer it was an injunctio against the secreta. The court has no jurisdiction to do that. Itant enter strongly indicates that the court cant judge pan review president ial acon if on paper they direct their judgment to a subordinat officer. Is that what youre sayi