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Trump Immunity Appeal

recognize some novel criminal immunity and i want to start with jurisdiction as judge childs raised. it is our view that the court has and should entertain both claims before it. with respect to the immunity claim, i think that this court's decision in cisnernos ten years after midland asphalt did allude to a type of separation of powers claim that involved presidential immunity and judge henderson pointed out that the supreme court, itself, has acknowledged the idea of explicit guarantee is more of the suggestion than some statutory prescription -- >> but there are no cases since then that have used the word suggestion to follow up on that line of thinking. >> within the supreme court, i don't believe there have been cases, but certainly, this court in cisnernos and in cases posting midland versus asphalt, and rose versus doskowski and

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Trump Immunity Appeal

trump's team made it harder than they needed to, and quote, what a different federal judge said that you climbed out on the limb than you need not have, and now you are in the process of sawing it out, and now an awkward difficult to reconcile that the only way they have argued that a president or former president could be criminally prosecuted is if he is impeach and convicted by the senate, and this is leading to bizarre scenarios like you pointed out, what if the president ordered the assassination of a political rival and not impeached. >> it is so poignant, that judge florence pan said, military secrets and selling pardons and a litany of questions. listen. >> if the president ordered seal team six to assassinate a political rival. >> he would be speedily impeach

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Trump Immunity Appeal

>> and to pick up on my response to judge childs, we certainly stand by our review in the brief that some substantial number of allegations would fall outside of the outer perimeter and this is i think enough to affirm, and i think that either parties are urging the court then to send it back to the district court which then is going to create a series of challenging questions i mentioned earlier which are what are the evidentiary theerories that evidence could come in, and it is our strong view, and if the court were to follow that route, which we urge the court not to, which is to make clear that the immunity is and on/off switch. if the court is to affirm, send it back and no immunity, and then other things are evidentiary questions of jury instructions which any appeal is then an appeal from the final judgment if any final judgment. >> and the immunity defense is

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Trump Immunity Appeal

dernberger when talking about immunity is which a appellant jurisdiction of collateral order are in theory. >> and other circuits, 1st, 2nd and 10th are following that thinking of midland and asphalt which follow the explicit constitutional statutory language that says you cannot be tried. >> two, in cases like cisnernos, this court has spoken otherwise, but nonetheless, one there is the 1st circuit of joseph where a judge is seeking a criminal, or raising an immunity defense to a criminal prosecution as this court acknowledged in both i believe rostenkowski and durrenberger and the court talked about claiborne and hastings which are 9th and 11th circuit cases noted that with personal immunity like that, it is different than the

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Trump Immunity Appeal

questions of immunity in criminal context. i tend to agree with my friend on the other side that in many respects it does reinforce the nature of the fitzgerald outer perimeter standard saying that you don't look at intent or you don't look at purpose, because content is playing a role of the content of communications, and the signature change is the acknowledgment of the looking at a president whether that president is acting in his or her role as office seeker or officeholder. again, to go back to my response to judge childs' question, although it would change the nature of whether or may change the nature of whether certain things are or are not certain acts in the indictment, we think it is entirely the wrong paradigm to use, and in fact, it would be inconsistent with the fitzgerald's reasoning, and also, irreconcilable with the way that criminal law works. to say that we won't take

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Trump Immunity Appeal

merits. >> let me ask you about marbury versus madison and what is your interpretation of the progeny or the case, itself? >> so, our interpretation is more in line of judge pan and yours, in that it does not erect an unreviewable power of the presidency and sort of the prime example of that is the steel seizure case, the youngstown case, and that is president truman closing steel mills, and the court coming in to review that. we see it all of the way through to the present, and so it is hard to see any world in which the court just says, you know, we can't intervene here. we do see the judge henderson's distinction between ministerial a acts and the discretionary call, because it is something that i

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Trump Immunity Appeal

notes to john sauer, and he was very, very attentive when a couple of the judges spoke s and when the judge childs was asking questions, and he seemed very, very focused on her. one of the things that i thought, or what i found very interesting is that there are times where, you know, he seemed very, very much trying to portray how much he agreed with his side of the case being presented. he looked over and he nodded strongly when sauer was talking about how the fact that the former president was not, and there was no allegation against him that any of the crimes that are being alleged him happened outside of office. they all happened while he was sitting in office. so, he nodded very strongly to that argument from john sauer. again, you know, the room was quite focused on the former

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Trump Immunity Appeal

because it caught my interest, when evan said that trump was passing notes to the attorney, and evan, a few moments here when the judges had to repeatedly follow up on the questions and rephrase them for trump's attorneys and what were their facial expressions and body language during this? >> well, certainly, i think that they were trying to hue very close to the arguments and make sure they were not straying very far from the arguments and one of the things that the government points out is that trump and the legal team have evolved in some of the arguments, and so certainly, i think that for mr. sauer as soon as he hit the podium, he started to getting questions from judge childs and judge henderson, and so he didn't even have a minute, really to do his presentation, and it is always very fascinating to watch the lawyers who come to prepare for days and days and weeks, right, to do

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Ana Cabrera Reports

i tend to agree with my friend on the other side that in many respects, it does reinforce the nature of the fitzgerald civil outer perimeter standard. it says you don't look at intent or you don't look at purpose, context plays a more important role than often the content of communications. i think the significant change, of course, is the acknowledgement of the -- looking at a president, whether that president is acting in his or her role as office seeker or office holder. but, again, to go back to my response to judge childs' question, although that would change the nature of whether certain -- may change the nature of whether certain things are or are not official acts in the indictment, we just think that's entirely the wrong paradigm to use. we think under fitzgerald, it could be inconsistent with fitzgerald's reasoning and also just irreconcilable with the nature of how criminal law works. to say we're not going to take account of motive or intent,

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Ana Cabrera Reports

it in that opinion as determining whether it was office seeker versus office holder. do we use blasting game for that? >> so, if this court decides the case the way the district court does, did, pardon me, then i don't think blasting game has any role to play at all. because there is no question of whether, you know, is this act official or were these sets of allegations official. the question is, based on a fitzgerald analysis history precedent et cetera, you know, is there any quantum of immunity for a former president? we think the answer to that question is no. there is no reason as to the district court also found to turn to the indictment and consider this outer perimeter. this civil outer perimeter standard. >> how about -- the way the district court did? >> if you don't, i mean, i suppose -- >> blasting game. >> so, there are different ways the court could not decide it that way. i think to pick up on my response to judge childs, we

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