Attack. This is an hour. United states of america veonald j. Trump. [indiscernible] good morning. Before you get started can i just get a couple of things on theecd. Our jurisdiction w challenged by an amica. I do want to speako you more about jurisdiction, because we still have to say we have the jurisdiction. So even though you believe there is jurisdiction thespect to the collateral order docin how do you place that in line with thesplt case which specificly says in a criminal case, your jurisdiction needs to stem from the constitution or the explicit as well in atory law . We have three responses. If you look at the languageha Justice Scalia discussed, a situation er the right is one, the legal and practical value would be destroyed and these claims of absolute immuty falls within that discrimination explicitly stating that and dont have communication with anything inhe statute. I disagree. The doctrine arisees from article 2 and section 1. It is reenforced by the peachment judgment clause which refers to tal wallace facility itaing about a situation where the right not to be tried is distinguishishing and is dismissal of an indictment. We have the trial of y the clauses in which the supreme has found interlock can you tower jurisdiction. On the immugs mla asphalt not president ial the argument situations where thcourt said look, there is a speech and debatclm and another claim that doesn derive from the conition but closely an in the double jeopardy trial scenario y he twice put in jeopardy so you cannot be tri again in that regard. In the speech and debate says shall not be questioned, so the language was explicit but esnt say ex applies italy one is the plain language of impeachment clse ndcernible] impeachment and judgment clause. And this court expressly held 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 ted and the languagehat by midland asphalt is the situation where there is the appeal and legal an practical value is destroyed. And there are similaranage in cisneros. It has to be [indiscernible] im not aware of that. Digital equipment. I think that is an excellent point. And turning to the merits if i may, yr honor, to authorize the prosecution oa esident for his official acts would on up a pan doras box which this nation may ner recover. Could george w. Bushe prosecuted for allegedly giving false information to congress to induce the nion to go to war in iraq under fae present ens could president obama for allegedlyro strikes targeting u. S. Citizen could can i explore the implications of what you are arguing . I understand your position that a president is immune from criminal prosecution from any official acthahe takes as president , even if that action is unlawful or unconstitutional purpose, is that correct . If the president is cvied and impeached in a proceeding that reflects widespread political consensus that would have plain language under the pehment clause. So it smso me there are a lot of things that ghnot go through that process bause it is quite a coupleirr some rm process that has a lot of differt ople involved. So in your view, could a president self pardon or sell military sects those are officialct official act to communicate with a foreignovnment and such a president would not be subject to criminal prosecution . The sale of pardons because ere are with examples whent comes to president lion pardoning of mark rich. [indiscernible] whether or not a president can be prosecuted and he cant be prosecuted for that . As long as it is an official act. Private conduct in clinton v. Jone could a president Order Seal Team 6 to assassinate a political rival . He would have to be and be impeached and convicted. There would be no criminal prosecution and no criminal liability for that . Chief justices opinion and the plain language of the impeachment judgment clause presuppose what th fnders i asked you a yes or question. Could a president who ordered seal team 6 to assassinate a political rival could he be subject to crimina if he were impeached and convicted. My answer is a qualified yes. A political process has to would require impeachment and nviction by the senate. In these exceptional cas which the memo points out you would exct a speedy impeachment and coiction. What the founders were cceed about washa James Madison in federal lt 47. They were more concerned with the abuse of political purposes to disable and that he is what we see in that case. I asked you a series hypothetical of criminal actions taken by a president and cld be considered official acts and isk you would such a presen be subject to criminal precion . And your answer, yes or no is no . I said qualified yes if he is convicted and impeaed 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 communicati with executive Branch Agencies an communicating with foreign governmentss official act. [indiscernible] because under the procedure that you conce 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 are impeached and convicd. Isnt that also a concession that a president can be criminally prosecuted for an fial act because a president can be impeached for an official act. Unie circumstances. Youre conceding that president cane iminally prosecuted, doesn that nrow the issue before us to can a presidenbe impeached im sorry, can a president be prosecuted without first being impeached and convied all your arguments fall away, your separation of powers fall away andoly arguments fall away if you concedehaa president can be criminally prosecuted under certain circumstances . Article 2, section 1 has inrpted [indiscernible] article 3, lack of jurisdiction in examination of the president s official acts. Can do so if he i impeached and convicted. There is exception to that principle in the impeachment clause. The constitution gives you other d amers were most concerned that the presint wouldnt be impeached,hathey were concerned wasolitically motivated buth didnt say the president can never be prosecuted. They created a narrow exception. Would you concedehe is not absolute immuny that the judiciary c hear criminal prosecutn der any circumstances, you are saying onepecific circumstance does that mean there is absolute immunity . He constitution sets up a strong principle a vy narrow ception and. Iseems to me that once you coede that president s can be precuted under some circumstances, your separation of powers argument falls away and t iues before us are narrowed to are you correct in your interetion of the impeachment judgment clause. Doeshe impeachment judgment clause actually say what you sa it does. I respectfully andtrg principle in marburyersus madison, you ct sit in judgment because 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 offici acts or looking o a motion to dismiss which says looko e 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 throh a impeachment proceeding before they get prosecuted. Only subordinate officers. And points out very clearly, the framers in the cotitutional convention clearly contemptethat would be mandatory. He would havto be impeached and convicted. Deals wh bribery, treason and high crimes and misdemeanor. And hh crimes and miemnors basically cover anything that the u. S. Senate makes a political judgment and justifies from removing him from office. Does not makeolical judgments to a charge. I think it has no basis. Where the current incumbent of presidency and number one political opponent. What the impchnt 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 throh that process. But not everybody has to go through that process. Prosecutors lat o can come into information and evidence after they iesgated to make determinations about what ty 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 that office. And there is a deal cut under prident nixon where there is rdon given, there is an assumption that you could be prosecuted because why enter into those particular acts. Those areurely. Clinton versus jones that president clinton had admitted for not being that was private conduct. The president isnt immune f private conduct but for official acts. And pardon of president nixon. President nixon was accused of a wide range of private conduct an facing potential indictment. That is purely private conduct. When we tthe indictment they are they are aegg this is private conduct not official act why dont you speak to that because we have to look to the broader question and as well as th indictment [indiscernible] and return to e leged motive or purpose. And aegg purely private conduct a engaged for particular purposes and that is a strong line of Supreme Court this circuit distinguished of how you are committinghe acts. T strongly reenforces. And going back to marbury versus madison the nature of the act itself. And its an objecte. And use the word objecve context. Itoenot turn on theurpose or motive. And thisou properly rejected. Andradley against fisher and spalding and it is the strongest [. [indceible] well give you what you need, with respect to the actual indictment, it does not gloss over and put it in rmof what you are describing. And what h gone through a grand jury process unlike the impeacen judgment clause, how do we look at those particular ac. Clear guidance in nixon against fitzgerald. President nixonernated a whistleblower and ce into court and id this is not subject to immunity and the court said we are not looking at th lel of detail and the led motive for these acts and said the spefity is conducting theusess. Similar here, if you look at the indictment, five classes of conduct which is alleged which was official conduc meeting with the u. S. Department of justice who should be the ofcer. You said many of which. All of which. One exception because there is speech and. [indiscernible] and President Trumps tweets, the Second Circuit held that was an official channel o government communicaon and underhebjective all that speech is obviously. And meetings with the department of justice. And that was in the heartland of article 2, sectio3 to communicate with congress. Let me ask you [indiscernible] i dont believe you were counsel then but what about the confsis in the first impeachment proceeding that impeachment sul be [indiscernible] when he would be subject. Tru against vance and crimal subpoena for tax records that predated trumps time in office and concessio that he could be subject to prosecution. As for t impeachment brief that they cited itheir brief, they said have audicial process in this country, period. We have an investigative that no officer is immeund. And its that there is a quote in the congressional record in wch your client said through counsel, no former Office Holder is immune from prosecution. 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 is immune and the argument was the is no need to vote for impeacen because we have this bast which is criminal prosecution and seems that many senators relied on that voting tocqt. [indiscernible] what motivated senators vos. [indiscernible] took the position or your client d during the impeachment proceedi that there would ben option for criminal prosecution ler and its in the congressional record and what has changed or why did you change your position i believe there was a stinction and the investigative process that was the quote ius read. Whatever concession that may haveeen made would not have raised resjudicata. It is consistent withhe notion that defense including pridential immunity including separation of powers, couldnt beaised. There couldnt b a criminal processnd defenses could be raised is pretty straigfoard. There is no such thing as no concession in those proceedings what the District Court didn this case thanoresident is criminally immune from criminal prosecution. I dont thinkis there in the congressional record. Let me go back and you isolated that one sentence. Isnt it true that marbury vers madison has distinguied between discretionary official acts and ministerial which they mean imposed b law and its the latter one in which he can b held liable . D i want you i want you to address. S v. Johnson and the commonwethf virginia. The first one dealsitthe speech and debate clause. The supreme cou sd in essence, l the evidence alg with the speechnd debate he can still be prosecuted, that is that congressman, or i think it was conspiracy to defraud, and then in the commonweah of virginia you had the judge who h in charge with cre under which you could not discriminate in picking jues 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 done, that is the cosg of the jury, a ministerial a by someone on the street. To me that means when you have a duty tt imposed by law, picking a jurth said was ministerial imposed by law, whether youre the man on the street, the president , whether in that case y areheudge you can be held criminally libel. Andhats how i read, if not marbury, the progeny that is you cant op an official act. You have to say was it discretionary official act or nierial. Mr. Sauer i agree wit that characterization. I think the dtition is present in marbury. What i would rpond that extension has ner en extended to the president ,or good reason. For over 200 years the court held that we cant sit in dgnt over the president s official acts under any circumstances. E dont have any mr. Sauer its never arisen until this case. If you look at evy vil context, what they said what jeff s teus marshall is is never examable. There would n judicial proceeding where you can say the president did this and well sit in judgment directly over that. Thats reinforced by mississippi against sns. Where the courts hold we cant even enjoin or declare a judgment forheresident in official acts. Theifrence between ministerial andiscretionary has been held totally with respect to subordinate officers. At goes back to marbury. If you look at the indictmt this case, nothing alleged against President Trump could be scribed as ministerial. I dont know where the government argued that if y are talking about responding to widespread allegio of fraud, abuse, andisesance in a president ial election, tryingo find out how to respond it to that. Matters that he nature not ministerial. Even if that distinction goes all the way up, it wouldnt save the indictment here. Why isnt it ministerial . S constitutional duty to take re that the laws be faithfully executed requires him to ll those laws, every one of them . Mr. Sauer i would say thathe take care laws, carrying out onesuties in take care laws ar discretionary. Hes adminteal act in marbury is delivering a seal en requested. There is a separate statute what they emphasize, the kansas city had these two th secretary of state had these two hats on. On the other hand, the original statute had imposed these ministerial duties that had to do wh cord keeping. Youot a land deed thats got a seal on it. There is no discretion at all. When you arealng about the take care clause, there is no statute that could impose on the president a manto the notion that when the president s meeting with theeptment of justice, we should investigate and enforceedal fraud statutes, that ministerial strikes me as insupportable. Think youre missing what im asking. Judgeenrson i think its paradoxical to sayhat his constitutional dutto take care that the ls be faithfully executed allows him to violate crimin laws. We are at the motion to dismiss stage. The government has crg the specific criminal laws. We have t assume they are true. Mr. Sauer my response would be to emphasize what chief justice said marshall said in marbury. Judge heern i thought you agreed with me we have gotten beyond marbury in the senseha official acts has been bdivided into discretionary and duty bound or nierial. And in the ministerial or dy bound, at least with respecto legislative even legislators d 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 case, johnson legislative its between legislative acts and nonlegislative acts. The distinction in ex parte virginia is between judicial acts 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 a number 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 war. Theres the case of little bahrain, where chief Justice Marshall reviewed the actions of president adams when he seized certain 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 issue judgments against subordinate 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