There is a possibility they may see some opportunity for some immunity for some president ial decisions. If they decide it that way, it may have to go back down to the District Court which could cause further delay. I appreciate you not being sidetracked by somebody who apparently wants to scream louder than anybody else. Catherine, the lower courts have been unanimous that trump cannot claim immunity. Does that tell you something . I cant imagine theyre going to say a former president has absolute immunity for criminal acts. What will be a win for donald trump is if theyre saying were sending it back to judge chutkan to determine which, if any he would have immunity for and which he would not. Thats a win because that would delay the trial, which is already delayed. So what of course obviously jack smith and Special Counsel is hoping for, a majority of the court will just say, no, absolute immunity from Criminal Prosecution for a former president and clearly jack smith would say this is private acts. Everybody stay with us. The arguments are just getting underway. Lets listen in to the u. S. Supreme court. Without president ial immunity from Criminal Prosecution, there can be no presidency as we know it. For 234 years of american history, no president was ever prosecuted for his official acts. The framers of our constitution viewed an energetic executive as essential to securing liberty. If a president can be charged, put on trial, and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president s decisionmaking precisely when bold and Fearless Action is most needed. Every current president will face de facto blackmail and extortion by his political rivals, while he is still in office. The implications of the courts decision here extend far beyond the facts of this case. Could president george w. Bush have been sent to prison for obstructing an official proceeding or allegedly lying to congress to induce war in iraq . Could President Obama be charged with murder for killing u. S. Citizens abroad by drone strike . Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies. The answer to all these questions is no. Prosecuting the president for his official acts is an innovation with no foothold in history or tradition and incompatible with our constitutional structure. The original meaning of the executive Vesting Clause, the framers understanding and intent an unbroken historical tradition spanning 200 years and Policy Considerations rooted in the Separation Of Powers all council against it. I welcome the courts questions. To your last point, could you be more precise as to the source of this immunity. The source of the immunity is principally rooted in the executive Vesting Clause in article 2 of how does that happen . The source of it, justice thomas, i think is as you described a separate opinion that the executive Vesting Clause does not include only Executive Powers laid out explicitly therein but encompasses all the powers that were originally understood to be included therein, and Marbury Against Madison itself provides strong evidence this kind of immunity abroad principle of immunity that protects the president s official acts from scrutiny direct sitting in judgment, so to speak, of the article 3 courts that matches the original understanding of the executive how exactly would we determine what an official act is . I point the court to two cases for that, Obviously Fitzgerald Against Nixon is the best guidance the court gives or the court adopted the Outer Perimeter Test. In this court it engaged in analysis there thats very instructive here where it looked at the level of specificity at which the acts are described, in that case a civil case, here it would be the indictment what if you have lets say the official act is appointing ambassadors and the president appoints a particular individual to a country but its in exchange for a bribe, somebody says ill give you a Million Dollars if im made the ambassador to whatever. How do you analyze that . That i think would fall under this courts discretion in brewster where the court held with respect to legislative acts that bribery is not an official act, which matches the common law background. The way this court in brewster kind of sliced at the joint was to say accepting the bribe and the agreement are not official acts. Thats private conduct. Appointment would be essentially unrestrictable power of this court. Accepting the bribe isnt an official act, but appointing an ambassador is certainly within the official responsibilities of the president , so how could you how does your official acts or the official acts order, boundary come into play when its going to be official assuming that the president is innocent but the whole question is whether hes going to be found innocent or guilty . Again, i think brewster and johnson do address that or very persuasively. Brewster and johnson say the indictment have to be expunged, there has been to be a determination of whats official, whats not official. You say, okay, were prosecuting because you accepted a Million Dollars. Theyre supposed to not say what its for because the whats for part is within the president s official duties . There has to be an independent ours of evidence for that. Keep in mind that this Indictment Charges what this court has described as unrestrictable powers of the president. The logical premise of this indictment is that congress by passing vague and general criminal statutes has purported to directly regulate the president s exercise of things like the exercise of employment and removal power, things like his ability to speak directly to the american public. Core exercises of his authority under the recommendations clause to recommend to congress, Members Of Congress the measures he thinks necessary and expedient, so you have an indictment in this case that goes right to the heartland of the president s powers that alleges a whole series of official acts and tries to tie them together by saying theres a private aim or a private purpose in that case, and thats a situation which of course could be alleged in virtually any indictment. Counsel, it can be alleged but it has to be proven. Mall up insay is a concept long viewed as appropriate in law that there are some things that are so fundamentally evil that they have to be protected against. Now, i think in your answer below, im going to give you a chance to say if you stay by it, if the president decides that his rival is a corrupt person and he orders the military, or orders someone to assassinate him, is that within his official acts for which he can give immunity . It would depend on the hypothetical. We could see that could well be an official act. It could and why, because hes doing it for personal reasons. Hes not doing it at like President Obamas alleged to have done it to protect the country from a terrorist. Hes doing it for Personal Gain, and isnt that the nature of the allegations here, that hes not doing them doing these acts in furtherance of an official responsibility. Hes doing it for Personal Gain. I agree with that characterization of the indictment, and that confirms immunity because the characterization is that theres a series of official acts that were done for no, because immunity says even if you did it for Personal Gain, we wont hold you responsible. What do you how could that be . Thats an extremely strong doctrine in this courts case law in cases like fitzgerald we go back to justice thomass question, which was where does that come from . There are emeka here who tell us that the founders actually talked about whether to grant immunity to the president , and in fact, they had State Constitutions that granted some criminal immunity to governors, and yet, they didnt take it up. Instead they passed an impeachment clause that basically says you cant remove the president from office except by a trial in the senate, but you can impeach him after. So or you can impose Criminal Liability. We would be creating a situation in which we would be saying this is what youre asking us to say, which is that a president is entitled not to make a mistake but more than that. A president is entitled for total Personal Gain to use the trappings of his office. Thats what youre trying to get us to hold without facing Criminal Liability. Your honor, i would say three things in response to that. First, the doctrine that immunity does not turn on the improper motivation or purpose is something this court has reaffirmed in each thats absolute immunity, but qualified immunity does say whatever act you take has to be within what a reasonable person would do. Im having a hard time thinking that creating false documents, that submits false documents, that ordering the assassination of a rival, that accepting a bribe and countless other laws that could be broken for Personal Gain, that anyone would say that it would be reasonable for a president or any public official to do that. Your honor, as that court said very persuasively in fitzgerald, the allegation that this particular act would be done for an unlawful purpose or was unlawful could be made in every case, and therefore, if that were the doctrine that the allegation of improper purpose is what deprives the objective acts of their immunity, then the immunity would have no purchase, and thats reflected in many of the other cases. So isnt the work, though, of the improper motive at least in the absolute immunity context, to tell us what are official acts and what are not . I mean, id understood that even in the first of all, your ask is absolute immunity, isnt it . Thats our principal position. Your position is you want the same kind of doctrine that weve applied in other contexts when we say an official has absolute immunity. My understanding is when we say that we mean for their official acts is that right . Yes. Any official acts in that world the real decisionmaking from the courts standpoint is whether or not something is an official or not, correct . Thats an important determination. That is the determination in an absolute immunity world. The principle is you get immunity for t correct . That is correct. So my question and i think the Chief Justice may have asked this at the beginning, is how do you determine what or maybe justice thomas, how do you determine what is an official act, and when were talking about the kinds of scenarios that Justice Sotomayor brought up, one could say that when the president is using the trappings of his office to achieve a Personal Gain, then hes actually not acting officially, even if the doctrine was absolute immunity. So what do you say about that . Two things in response to that. In the last point, that allegation that this was motivated by an improper private purpose could be made in every single case. I understand that, but it would have to be made im just trying to assess, even if we had the doctrine of absolute immunity, that same allegation and the facts related to it would come in because the person would be arguing that he was not acting in his official capacity. He wasnt doing something official. He was doing it personal, correct . I agree. The object ifr im not sure i agree, but the point i would make in response to that is in fitzgerald against nixon, this court emphasized that would result in an intrusive discussion or determination of the president s personal motives for every official act, and again, this is not just in the case of the presidency can i just ask you another quick question before my colleagues take it over here, at the beginning of your analysis when you were giving your opening statements, you were talking about, you know, you suggested that the lack of immunity and the possibility of prosecution in the president ial context is like an innovation, and i understood it to be the status quo. I mean, i understood that every president from the beginning of time essentially has understood that there was a threat of prosecution if for no other reason than the constitution suggested they can be prosecuted after impeachment, that, you know, the office of Legal Counsel has said forever that president s are amenable to a threat of prosecution, and they have continued to function and do their jobs and do all the things that president s do. So it seems to me that you are asking now for a change in what the law is related to immunity. I would quote from what Benjamin Franklin said at the Constitutional Convention, which i think reflects best the founders original understand and intent here. At the Constitutional Convention, Benjamin Franklin said history provides one example only of a Chief Magistrate who is subject to public justice, Criminal Prosecution, and everybody cried out against that. No, i understand, but since Benjamin Franklin everybody has thought, including the president s who have held the office, that they were taking this Office Subject to potential Criminal Prosecution, no . I see the opposite. I see all the evidence going the other way. Marbury against madison, mississippi Against Johnson discuss this broad immunity principle so what was up with the pardon for President Nixon . If everybody thought that president s couldnt be prosecuted, then what was that about . Well, he was under investigation for private and public conduct at the time, official acts and private conduct, and i think everyone has properly understood that the president since like President Grants carriage riding incident, everyone has understood that the president could be prosecuted counsel on that score, there does seem to be some Common Ground between you and your colleague on the other side that no mans Above The Law and that the president can be prosecuted after he leaves office for his private conduct, is that right . We agree with that. And then the question becomes as weve been exploring here today a little bit about how to segregate private from official conduct that may or may not enjoy some immunity, and im sure were going to spend a lot of time exploring that, but the d. C. Circuit in blazing game, chief judge there joined by the panel expressed some views about how to segregate private conduct for which no man is Above The Law from official acts. Do you have any thoughts about the test that they came up with there . Yes, especially if its understood through the lens of judge cats separate opinion is a very persuasive test. It emphasizes the breadth of that test. It talks about how action that are, you know, plausibly connected to the president s official duties are official acts and it also emphasizes if its a close case or it appears theres considerations on either side that also should be treated as immune. Those are the aspect of that that wed emphasize as guiding the court. That left open the prospect of further proceedings and trial. Exactly right, and that would be a very natural place for the court to take. The categorical holding of the d. C. Circuit that theres no such thing as official acts when it comes to youd agree further proceedings would be required. That is correct. There would have to be i would point to anderson against creighton. Theres looking at the indictment itself or in that case it was a complaint, but look at the Charging Document itself and see whether or not face of it this is alleging official acts and if not or it cant be determined, then there would be a factual proceeding, and all of that would have to occur before any other proceedings in the district. Go ahead. Mr. Sauer, you began by explaining why you believe that immunity from Criminal Prosecution is essential for the proper functioning of the presidency. But my question is whether the very robust form of immunity that youre advocating is really necessary in order to achieve that result. So just to take one possible alternative. Suppose the rule were that a former president cannot be prosecuted for official acts unless no plausible justification could be imagined for what the president did taking into account history and legal precedent and the information that was provided to the president at the time when the act was taken. Would that be sufficient, or if it is insufficient, why would it be insufficient in. That might be a much better role than what emerged in the lower courts. We think it would be insufficient. That long line of cases talking about using the president s motives and intrusive sort of consideration of the president s motives as transforming acts to official and unofficial would be would come into play, and of course once you can make that allegation, all of a sudden youve opened the door. You no longer have a per se clear bright rule, off determination in every single case. What if it were not what if it did not involve any subjective element. It was purely objective. You would look objectively at the various relevant