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The distinction between ministerial and discretionary has been held totally with respect to subordinate officers and that goes all the way back to marbury. if you look at the indictment in this case, nothing against president trump could be described as remotely ministerial and i don t know if the government argued that, if you re talking about responding to widespread allegations of fraud and abuse and misfeasance in a presidential election, trying to find out how to respond to that, in the national interest. even if that distinction goes up to the it wouldn t stay in the indictment here. why isn t it his constitutional duty to take care that the laws be faithfully executed requires him to follow those laws. every one of them. i mean, nothing i would say the take care clause, carrying out one s duty in the take care clause are inherently discretionary. example of ministerial act in marbury against madison is like ....
That. i m not making any concession let me try one more time. under your interpretation of the impeachment judgment clause, if president trump had been convicted when he was previously impeached on same or related conduct as that which is in this indictment, the government could properly prosecute him for that same or related conduct, yes or no? potentially provided they qualified with other legal documents that are violated in this case, so i admit that i m only asking you under your interpretation of the impeachment judgment clause, is that proper? is that allowed? may i stand on my prior answer? i think we i understand there might be other reasons why you would challenge this prosecution, i m saying based on your interpretation of the clause, this prosecution would be properly brought? if a i would not say this prosecution, very clear about that. a prosecution based on same or related conduct. ....
So jack did have the better argument there. and ministerial and that is what everybody was saying, just say it, whether it is his actions around january 6th were official acts and they were talking ministerial and discretionary and take-care clause, and this is the president has the duty to ensure that the laws of this nation are executed and enforced. but this idea, elie, of what he is doing is official or rogue in some way plays very big in this case, and it could end up back before judge chutkin. yes, and before the united states supreme court as well, and that is what it looked like the argument was going to be. was trump s conduct around ....
That judge pan set out, but with respect to the immunity and given the language in rose it would supply the basis for the court to apply the immunity claim. why aren t you taking position that we should dismiss this appeal because of the interlocutory, because it should advance your interests? our interests are twofold as in the united states versus nixon, it is doing justice and in the second, it is indeed to move promptly to satisfy and vindicate the public and defendant s resolution of the trial, but doing justice means to get the law right, and it is our view that even if a dismissal on the jurisdiction might move this case faster and empirically, it is hard to know, but it is not the right analysis on immunity or the second claim. we have a line of cases including cramer versus gates and american hospital association versus azar, and it says that we can assume ....
The allegation to the indictment official acts, wouldn t characterize them as private acts as to the alleged motive or purpose for that. their whole theory, their characterization of the language in the indictment is we re alleging purely private conduct as was engaged in for particular purposes and that s foreclosed by a very long and strong line of supreme court the case here, that we this circuit distinguish office seeker in or office holder in how you characterize the acts. going back to marbury against madison, the nature of the act itself, i understand the opinion to reinforce that by saying it is an objective. they use the word objective multiple times, objective context specific assessment. it does not turn on the purpose or motive. this court properly rejected. that s consistent with nixon against fitzgerald, bradley against fisher, spalding against ....