Content, its clear that petitioner is acting in the capacity as office seeker, not as president. We would look at that content. Okay. The test im focused on the legal test. Im not hearing any objections to it. Other than, i think that the d. C. Circuit placed more Content Consideration off limits than i would. All right. I wanted to understand, on the Core Immunity or whatever word we use, that it seems to me we are narrowing the ground of dispute here considerably, do we look at motives, the president s motives for his actions . For example, he has more power as we discussed, but he might use them to enhance his election, his personal interests. Is that a relevant consideration when were looking at core powers . I am thinking of this more as looking at the objective of the activity as opposed to the subjective motive in the sense that your honor is talking about. I think theres a lot of concern about saying an electoral motive to be reelected. Right. Every firstterm president everything he does can be seen through the prism by critics of his personal interest in reelection. So you i think you would say personal motivations off limits with respect to the core powers. Probably with respect to core powers, those are things that cant be regulated, like the pardon and veto power. Regardless of motive. Correct. Thats correct. Then were in the noncore powers where we are fighting over. What role do motives play there . One could remove an ask this first. Is removing an appointee a president ial appointee, a core power or noncore power . I might need to differentiate between the principal officers as regarded as having constitutional status of being removable at will from Inferior Officers where congress does have regulatory latitude to impose restrictions on removal. Sure. Put that aside. I understand that. Putting that aside, yes, appointing a principal officer is a core power. Im not prepared to say theres no potential regulation to say you cant do it to enrich yourself. Bribery. But thats what i was wondering. Do motives come into the core Power Analysis or not . Im hearing i thought i heard no and now im hearing maybe. Maybe might be move appropriate. The department has not had to take a position on exactly how these core powers would be resolved under as applied constitutional analysis. None is involved in this case. Im wondering im not concerned about this case so much as future ones, too. These noncore powers and maybe core powers where a president is acting with at least, in part, a personal interest in getting reelected. Everything he does, he wants to get reelected. If you are allowing in motive to color that, im wondering how much is left of either the core or noncore powers. I would be fine with carving that out and deeming that to be something thats intrinsic in our electoral system. Were not talking about applying criminal law to somebody who makes an announcement this program will be good for the United States and somebody could come along and say, you did it to get reelected, leaving aside that violates a criminal law, i know the next question is, assume it does. Im doubtful it does. I dont think criminal laws operate on motives as opposed to objectives and purposes. All right. Intentions. Reframe it as an intention. Lets put that aside. I understand. Putting that aside, that really to me falls in a very different category. Its also theres some motives or intents that are cognizable and others that arent. Its awkward when we look at the injunction. You cant enjoin a president. You couldnt hold him in contempt. Can i try One More Time let me spin this out a second. It didnt matter what the president s motives were. Were not going to look behind it. Same thing in nixon. Gosh, nixon versus fitzgerald, thats something courts shouldnt get engaged in, because president s have all manner of motives. Again, im not concerned about this case. But i am concerned about future uses of the criminal law to target political opponents based on accusations about their motives. Whether its reelection or who knows what corrupt means in 1512. We dont know what that means. Maybe we will find out sometime soon. The dangerousness of accusing your political opponent of having bad motives. If thats enough to overcome your core powers or any other limits, reactions, thoughts. I think that you are raising a very difficult question. Thats the idea. That is the idea. Testing the limits of both sides arguments. Im going to Say Something i dont normally say, which is that is not involved in this case. We dont have bad political motive in that sense. I understand that. I appreciate that. You also appreciate that were writing a rule for the ages. Yes. I would start by looking at the statutes and seeing what restrictions they do place on the president s conduct. For example, the statute that prohibits fraud to defeat the lawful function of the United States. The statute defines what the purpose is that the defendant has to have in mind. It has to be to defeat something that the United States is doing and it has to be by deception. I dont think that that gets us into the realm of Motive Hunting in the area where we are as concerned as the court would be about doing something that would undermine the presidency and the Executive Branch. 1512c2, we may have different views on the clarity and scope of that statute. I think if the court does interpret corruptly as involving a consciousness of wrongdoing and elevates that to consciousness of illegality, then we are in a different realm. You dont have to worry about about prosecuting president s for that. Thank you. Justice kavanaugh. This case has huge implications for the presidency, for the future of the presidency, for the future of the country, in my view. You have referred to the department a few times as having supported the position. Who in the department, the president , the Attorney General . The Solicitor General of the United States. Part of the way in which the Special Counsel functions is as a component of the Department Of Justice. The regulations envision we reach out and consult. On a question that involves equities beyond this prosecution, as the questions of the court its the Solicitor General . Yes. Second, like Justice Gorsuch, im not focused on the here and now of this case. Im very concerned about the future. I think one of the courts biggest mistakes was morrison versus olesen. That was a terrible decision for the presidency and for the country. Not because there were bad people who were independent counsels, but President Reagan, president bush, president Clintons Administration were really hampered in their view, all three, by the independent counsel structure. What im worried about is that that was lets relax article 2 a bit for the needs of the moment. Im worried about the similar kind of situation applying here. That was a prosecutor investigating a president in each of those circumstances. Someone picked from the opposite party the current president and usually was how it worked. Justice scalia wrote the fairness of a process must be judged on what it produced. You emphasized regularity of the Department Of Justice. I think this applied to the independent counsel system and it could apply if president s are routinely subject to investigation Going Forward. One thing is certain, it involves investigating one person. What would the reaction be if in an area not covered by the statute, the Justice Department posted a Public Notice inviting applicants to assist in an investigation and prosecution of a certain prominent person . Does this not invite what Justice Jackson suggested . To be sure the investigation must relate to the area of criminal offense specified by the statute. That is often and nothing prevents it from being very broad. It was referring to the judges. Thats the concern Going Forward is that the system will when former president s are subject to prosecution in the history of morrison versus olesen, tells us, its going to cycle back and be used against the current president or the next president or and the next president and after that. All that, i want you to allay that concern. Well, first of all, the independent counsel regime did have many structural features that emphasized the independence at the expense of accountability. We dont have that now. Even under that regime, Justice Kavanaugh, i think if you look at lawrence walshs report, this goes on a fundamental point to consider. Judge walsh said, i investigated these matters, the proof did not nearly come close to establishing criminal violations. We have lived from watergate through the independent counsel era without these prosecutions having gone off on a runaway train. I think President Reagan and bush and clinton, whether rightly or wrongly, thought contrary to what you said. I think nobody likes being investigated for a crime. It didnt result in the kind of vindictive prosecutions that i think your honor is raising as a possibility. We have a different system now. I think there was a consensus throughout washington that there were flaws in the independent counsel system. It lapsed. We are now inside the Justice Department with full accountability resting with the Attorney General. The regulations now dont operate the way that the independent counsel regulations do. This court would have something to say about it if the independent counsel statute were revived. Im not sure anybody is in favor of that. This is the mirror image of that as one way someone could perceive it. I take your point about the structural protections internally. Like Justice Scalia said, i do not mean to suggest anything of the sort in the present case. Im not talking about the present case. Im talking about the future. Another point, you said talked about the criminal statutes. Its easy to characterize president ial actions as false or misleading under vague statutes. President johnson, statements about the vietnam war. Say something is false, turns out to be false that he says about the vietnam war. 371 prosecution after he leaves office . I think not. This is an area that i do think that merits some serious and nuanced considerations. Statements made by a president to the public are not really coming within the realm of criminal statutes. They have never been prosecuted. I realize the court can say, well, what if they were. Then i think you get to what i would regard as a hard constitutional question that would probably guide the court away from trying to resolve today. Although, i do think its different from our case and distinguishable in important ways. You are dealing here with two branchs of government that have a paramount interest in the integrity and freedom of their interactions with each other. On the one hand, the president , of course, should be very free to send usually his cabinet officials to testify to congress to provide them with the information needed to enact legislation and to make national policy. Were very concerned about anything that would trammel that. Congress has an interest in receiving accurate information. At the least i agree. That would pollute i think it came up before. President fords pardon, very controversial in the moment. Yes. Hugely unpopular. Probably why he lost in 76. Now looked upon as one of the better decisions in president ial history i think by most people. If he is thinking about, if i grant this pardon to Richard Nixon, could i be investigated myself for Obstruction Of Justice on the theory that im interfering with the investigation of Richard Nixon . This would fall into the small core area i mentioned to Justice Kagan and gorsuch of president ial responsibilities that congress cannot regulate. How about president obamas Drone Strikes . The office of Legal Counsel looked at this carefully and determined that, number one, the federal Murder Statute does apply to the Executive Branch. But the Aiding And Abetting laws are broad. It determined a Public Authority exception thats built into statutes and that applied particularly to the Murder Statute, because it talks about unlawful killing, did not apply to the drone strike. This is actually the way the system should function. The Department Of Justice takes criminal law very seriously. It runs it through the analysis very carefully with established principles. It dock umentuments them and th president can go forward. Theres no risk of prosecution for that course of activity. Thank you for your answers. Justice barrett . I want to pick up with that Public Authority defense. Im looking at the olc memo that david barren wrote. He describes the Public Authority defense citing the model penal code. There are a few definitions. I will highlight this. Justifying conduct which is required or authorized by the law defining the duties or functions of a public officer, the law governing the Armed Services or lawful conduct of war or any other provision of law imposing a public duty. That sounds a lot like dividing a line between official and private conduct. I think its narrower. I recognize its a defense not an immunity. When we look at the definition of it, are you acting within the scope of authority conferred by law or discharing a duty . Its narrower than nixon versus fitzgerald, but thats what it sounds like to me. I certainly understand the intuition that when you act outside of your lawful authority, you have gone on a frolicking detour, you are no longer carrying it out. I dont think that quite works for president ial activity. The only way that he could have implemented the orders is by exercising his commander in chief authority over the armed forces or his authority to supervise the Executive Branch. Those seem like Core Executive Acts to me. Theres a possibility as an unlawful executive act. Im not sure i understand your answer. I was thinking it seemed to me in your briefs and today, when you referred to the Public Authority defense, you said thats one of the builtin protections and why immunity is not necessary, because when the president takes such actions that the court has been asking, might this result in criminal prosecution, you say he could raise this Public Authority defense. Im saying, isnt this Public Authority defense if raised, doesnt it sound like a defense that says, well, i had i was authorized by law to discharge this function . Therefore, i acted lawfully. Therefore, i acted lawfully and am not criminally liable. Yes. Does that look into motives . This gets to what Justice Gorsuch was asking. Can you say i was acting in the scope of my authority, be removing a cabinet officer, but the Public Authority defense might not apply because you had a bad motive . No, i dont think so. I think it operates based on objective facts disclosed to counsel, counsel then provides advice, in this case the Department Of Justice, and its an objectively valid defense. Its a complete defense to prosecution. What would be so bad one thing that strikes me as different one thing thats obviously different between the Public Authority defense and immunity is an appeal and having it resolved at the outset. What would be so bad about having a question like that resolved at the threshold, having it be an immunity . The same kind of question that could be brought up as a defense later, but brought up at the threshold as immunity and then an appeal would be available and it would be a freedom from Standing Trial, but not a get out of jail free card. I understand that. I think that if the court believed that that was the appropriate way to craft president ial protections, it has the authority to craft procedural rules that implement its article ii concerns. That said, Public Authority were calling it a defense, but under many statutes its an exception to liability yourself. What you are talking about is trying the general issue. Generally, in criminal cases, even cases that involve First Amendment issues, like threat statutes, the jury is the determinant of the facts. I have a little bit of difficulty with the idea of trying the whole Public Authority issue separately to the judge and having that go up on appeal with review of facts before you could ever get it forward into a criminal case. That said, i would prefer a regime in which the court altered some of the procedural rules surrounding the president than a total, absolute Blanket Immunity that takes away the possibility of criminal prosecution even if it was a core violation of