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for 23-3228, United States of America versus Donald J. Trump appellant.

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Mr. Sauer for the appellant, Mr. Pierce for the appellee.

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Good morning.

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Before you get started, can I just get a couple of things on the record?

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Our jurisdiction was challenged by an amicus, but from your reply brief, you are not questioning our

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collateral order jurisdiction.

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Correct.

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We defend the collateral order jurisdiction.

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That's correct, Your Honor.

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And then also you have either abandoned or not made the Fifth Amendment double jeopardy argument before us.

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We have framed the devil jeopardy argument is arising principally from the impeachment judgment clause so we haven't argued that if you go straight to the double jeopardy clause that that alone would result in reversal, focusing on the impeachment judgment clause now that incorporates principles of double jeopardy but but we haven't said a straightforward directly under the.

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clause in this court at this time.

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Well before that occurs then I do want to speak to you a little bit more about jurisdiction because we still have to satisfy ourselves that we have the jurisdiction.

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So even though you believe that there's interlocutory jurisdiction with respect to the collateral order doctrine

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How do you place that in line with millions?

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Asphalt case, which specifically says in a criminal case, your jurisdiction needs to stem from the Constitution or be explicit as well in statutory law.

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We have three responses to that, if I may, Your Honor.

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One is, of course, that if you look at the language of Midland Asphalt, what Justice Scalia is discussing in that case is particularly a situation where the right is won, the legal and practical value of which would be destroyed if it were not violated before trial.

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And these claims of absolute immunity fall right in the heartland of that description of that right.

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That's been reinforced by this deal with explicitly stating that because we don't have an explicit communication here with respect to any anything in the constitutional statute.

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Yeah, I respectfully disagree with that.

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The doctrine of presidential immunity arises directly from our

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Article two, section one in the executive vesting clause, it's reinforced by the plain language of the impeachment judgment clause, which specifically refers to trial.

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Remember what Midland Asphalt is talking about is situations where the right not to be tried is at stake, and it distinguishes that from the remedy for which is the dismissal of an indictment.

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So when you're talking about the right not to be tried, we have the clearest and most explicit reference to trial of any of the clauses in which the Supreme Court has found interlocutory jurisdiction.

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But there have been other circuits that have indicated on the issue of immunity, Midland Asphalt still applies.

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Yeah, not presidential immunity with respect.

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That's what you're making your distinction.

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Right.

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And well, what I would say is this court's decision in Cisneros explicitly says, you know, right there,

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And it says most separation of powers claims may not be set to interlocutory view but there are some that may and then it goes on to say presidential immunity arising from the separation of power citing Clinton against Jones.

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So says narrows, I think expressly contemplates that there be interlocutory jurisdiction and this sort of claim.

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And that's further reinforced by the court's subsequent decisions in Rose and Rostinkowski situations where the court said, look, there's a speech and debate claim.

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And there's also another claim that's, it isn't derised directly from the constitution, but it's closely akin or analogous to such a claim.

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Again, about explicit, because in the double jeopardy trial scenario, you have twice put in jeopardy.

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So you cannot be tried again in that regard.

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Then in the speech and debate, it says, shall not be questioned.

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So the language was explicit.

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You're not giving me anything that says explicitly in the references that you cite.

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I have two responses to that.

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One is the plain language of the impeachment judgment, Columbus, which says that only the party convicted shall be subject to indictment, trial, judgment, and punishment according to law.

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But that's going to take the negative inference, correct?

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Which supports from the very beginning that is the natural and ordinary meaning the impeachment judgment clause so that is an argument that is explicit and also point out that this court in rows in rostin tosky instance narrows expressed expressly held this is not a magic words require.

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In other words, it isn't that you've got to say, it's got to say right there in the text of the Constitution or a statute that this is a right not to be tried.

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It's that what the right once formulated has to explicitly include the right not to be tried.

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And that's why what actually the language that's previously at Midland Asphalt is heavily emphasized by Justice Scalia is a situation where there's interlocutory appeal when the right it's a right, the legal and practical value of which is destroyed.

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If it's not vindicated before trial, there's similar language in Cisneros.

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I'd also point out the government also has not challenged the court's jurisdiction.

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It has conceded.

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Absolutely.

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It hasn't the Supreme Court itself referred to the Midland asphalt as a suggestion.

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Yeah, I'm not aware of that, but I think- And digital equipment.

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Gotcha, yes, Your Honor.

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I believe Your Honor is correct about that.

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I think that's an excellent point, and that's reinforced by this court's case law in Cisneros, Rose, and Restintowski.

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Turning to the merits, if I may, Your Honor.

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To authorize the prosecution of a president for his official acts would open a Pandora's box from which this nation may never recover.

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Could George W. Bush be prosecuted for obstruction of an official proceeding for allegedly giving false information to Congress to induce the nation to go to war in Iraq under false pretenses?

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Could President Obama be potentially charged with murder for allegedly authorizing drone strikes targeting US citizens located abroad?

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Could President... Can I explore sort of the implications of what you're arguing?

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I understand your position to be

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that a president is immune from criminal prosecution for any official act that he takes as president, even if that action is taken for an unlawful or unconstitutional purpose.

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Is that correct?

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With an important exception, which is that if the president is impeached and convicted by the United States Senate in a proceeding that reflects widespread political consensus, that would authorize the prosecution under the plain language of the impeachment judgment clause.

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So yes, with that exception.

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It seems to me that there are a lot of things that might not go through that process because it's quite a cumbersome process that requires the action of a whole branch of government that has a lot of different people involved.

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And so in your view, could a president sell pardons or sell military secrets?

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Those are official acts, right?

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It's an official act to grant a pardon.

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It's an official act to communicate with the foreign government.

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such a president would not be subject to criminal prosecution?

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The sale of pardons example is an excellent example because there were allegations about a sale of a pardon, essentially, when it came to President Clinton's pardon of Mark Rich and the US DOJ, carefully, and for the very reasons we've emphasized in our brief, decided not to prosecute President Clinton with that because it raised concerns about whether or not a president can be prosecuted for his official acts.

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There's actually an op-ed in the National Review from our Andrew McCarthy.

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But your position is that he can't be prosecuted for that unless he's impeached.

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That was as long as it's an official act.

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I mean, certain cases, purely private conduct under Clinton against Jones, he'd be subject to prosecution for that as long as he's not in office.

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But as long as it's official.

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Could a president order SEAL Team Six to assassinate a political rival?

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That's an official act in order to seal Team Six.

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He would have to be and would speedily be, you know, impeached and convicted before the criminal prosecution.

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But if you weren't, there would be no criminal prosecution, no

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criminal liability for that.

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Chief Justice's opinion of Marbury against Madison and our constitution and the plain language of the impeachment judgment clause all clearly presuppose that what the founders were concerned about was not.

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I asked you a yes or no question.

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Could a president who ordered SEAL Team 6 to assassinate a political rival who was not impeached, would he be subject to criminal prosecution?

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if he were impeached and convicted first.

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So your answer is no.

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My answer is qualified, yes.

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There is a political process that have to occur under the structure of our Constitution, which require impeachment and conviction by the Senate.

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In these exceptional cases, as the OLC memo itself points out from the Department of Justice, you'd expect a speedy impeachment and conviction.

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But what the founders were much more worried about than using criminal prosecution to discipline presidents was what James Madison calls in Federalist Number 47,

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you know, the newfangled and artificial treasons.

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They were much more concerned about the abuse of the criminal process for political purposes to disable the presidency from factions and political opponents.

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And of course, that's exactly what we see in this case.

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I've asked you a series of hypotheticals about criminal actions that could be taken by a president and could be considered official acts and have asked you

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Would such a president be subject to criminal prosecution if he's not impeached or convicted?

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And your answer, your yes or no answer is no.

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I believe I said qualified yes if he's impeached or convicted first.

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The question was, OK, so he's not impeached or convicted.

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Let's put that aside.

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You're saying a president could sell pardons, could sell military secrets,

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could order SEAL Team 6 to assessing a political rival.

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The sale of military secrets strikes me as something that might not be held to be an official act.

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The sale of pardons is something that's come up historically and was not prosecuted.

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But your brief says that communicating with an executive branch agency is an official act and communicating with a foreign government is an official act.

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That's what presidents do.

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situation.

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It was very strong potential officials.

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If you could achieve justice, you'll set him against medicine.

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He said rising directly under article two section that the uh uh the courts that the president's official acts are quote never examinable by the courts and he says it like four different times on pages 164.

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Well, let me ask you about that then council because your position is as I understand it,

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If a president is impeached or convicted, impeached and convicted by Congress, then he is subject to criminal prosecution, correct?

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Yeah, be it necessary.

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Is that a yes?

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Yes.

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Okay.

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So therefore he's not completely and absolutely

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immune because under the procedure that you concede, he can be prosecuted if there's an impeachment and conviction by the Senate.

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Very, very formidable structural change against the astonishing radical action of executing a former president.

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But you're conceding that presidents can be criminally prosecuted under certain circumstances.

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Specifically, if they're impeached or convicted, I think that's the main image of the impeachment judgment clause.

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And isn't that also a concession

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that a president can be criminally prosecuted for an official act because presidents can be impeached for official acts.

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Those unique circumstances.

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Right, but given that you're conceding that presidents can be criminally prosecuted under certain circumstances, doesn't that narrow the issues before us to can a president be impeached?

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I'm sorry, can a president be prosecuted without first being impeached?

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and convicted.

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All of your other arguments seem to fall away.

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Your separation of powers arguments fall away.

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Your policy arguments fall away if you concede that a president can be criminally prosecuted under some circumstances.

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I disagree with that.

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The Constitution in the Article II sectional investing clause, as interpreted very clearly by Chief Justice Marshall and Norbury against Madison, says Article III courts lack jurisdiction to engage in examination of the president's official acts.

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That's been reaffirmed by- But you just conceded that Article III courts can do so if he's been impeached and convicted.

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Constitution makes a carefully balanced, explicit exception to that principle in the impeachment judgment clause.

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So the problem for the separation of powers, the Constitution does this in many other situations where it engages in a balancing.

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What the framers were most concerned about was not the notion that the president would never be prosecuted for things that outrageous political opponents, what they were concerned about

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was politically motivated prosecutions, but they didn't say the president can never be prosecuted.

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They set up the separation of powers and they created a very narrow exception that would allow prosecution in those cases.

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But once you concede that there's not this absolute immunity, that the judiciary can hear criminal prosecutions,

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under any circumstances, you're saying there's one specific circumstance, then that means that there isn't this absolute immunity that you claim.

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I'm not aware of any case or constitutional doctrine that would say the constitution sets up a very strong principle and it creates a very narrow exception and therefore the exception just makes the principle vanish.

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I just disagree.

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That's not what I'm asking you.

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I'm saying that you're coming before us and saying that there is this absolute immunity that is grounded in the separation of powers that the judiciary can never sit in judgment on what the president is doing.

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But you're conceding that that's not true because under some circumstances, the judiciary can do that.

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That's all I'm saying.

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I think in a repeat answer, which is a very strong principle in the separation of pivots, political three, or sitting in judgment over a president's official acts, there's a very narrow exception for conviction after impeachment.

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I understand.

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I understand.

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And that's in the position.

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It just seems to me that once you concede that presidents can be prosecuted under some circumstances, your separation of powers argument falls away.

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And the issues before us are narrowed to, are you correct in your interpretation?

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of the impeachment judgment clause.

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Does the impeachment judgment clause actually say what you say it says?

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That's all that's really, we need to decide.

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I respectfully disagree with that.

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I respectfully disagree with that.

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There is a strong principle.

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It's reinforced by Chief Justice Marshall in Marbury against Madison.

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He did not say we can never sit in judgment over a president's official acts, but because it can be convicted, therefore we can do it whenever we want to.

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He said the exact opposite.

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He says they are never examined by the courts.

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So that's answering the larger question about whether there's presidential immunity from criminal prosecution for official acts, or are we looking to a standard on emotion to dismiss which says look to the allegations, take those as true, and then look to whether or not we should be looking at official acts in that lens.

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Actually, both threshold question raise discord judgment is essentially there's no such thing as criminal immunity for a former president and therefore the district court never reached the second issue, which is if you actually look at the face of the indictment, are these all official acts?

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We have strong arguments on both of those things.

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The notion that criminal immunity for a president doesn't exist is a shocking holding

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It would authorize, for example, the indictment of President Biden in the Western District of Texas after he leaves office for mismanaging the border, allegedly, and let a Texas jury and Texas judge sit in judgment over the validity of the facts.

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But you also indicated earlier that when there were pardons or when people were not prosecuted, not everybody goes through an impeachment proceeding before they actually get prosecuted because that's within the discretion of the prosecutor.

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Only for subordinate officers.

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So as the LLC member points out very clearly, the founding, the founders, the framers actually in the Constitution convention clearly contemplated that that sequence that I've described would be mandatory.

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He would have to be impeached and convicted first before he could you could go on to impeachment also only deals with certain crimes, bribery, treason, high crimes and misdemeanors.

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Yeah, if you look actually at what is said in the Federalist Number 65 by Hamilton about that high crimes and misdemeanors basically cover anything that the U.S.

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Senate makes a political judgment justifies removing him from office and authorizing prosecution.

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But a prosecutor is impartial, does not make political judgments, assumingly, to charge.

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I think that that has no basis in the context of the current prosecution where the current incumbent of presidency is prosecuting his number one political opponent and his greatest electoral threat in this particular.

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Asking you from the standpoint of what the impeachment judgment clause is designed to do, that it limits itself to certain acts and then therefore, and if convicted, as you indicated, impeached and convicted thereafter could be a prosecution.

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but not everybody goes through that process.

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Of course, it's limited to the certain actors in that regard, but not everybody has to go through that process.

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Prosecutors later on can come into information and evidence after they've investigated to make their determinations about what they'd like to criminally prosecute.

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So you're not always confined to whatever would be in the impeachment judgment clause.

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Whatever the practice has been with respect to subordinate officers, the evidence from the founding generation is clear as you cannot do that with respect to the people.

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And this is one example of May that's reinforcing all the Supreme Court's case law, the uniqueness of the presidency and the person who occupies the office of the presidency.

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So for example, you get repeated statements in Nixon against Fitzgerald, it's reaffirmed in Trump against Mazers, reaffirmed in Trump against Vance and so forth about the unique nature of that particular office.

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And therefore it's even under Clinton, where there's a deal cut under President Nixon, where there's a pardon given.

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there's an assumption that you could be prosecuted because why enter into those particular acts?

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Those examples are examples of purely private conduct.

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For example, Clinton gets Jones makes very clear that this stuff that President Clinton cut an indictment deal about by admitting to certain wrongdoing in exchange for not being indicted was purely private conduct.

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Nobody has contended that the president's immune for prosecution for purely private conduct.

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It's a question is, can you be indicted for official acts?

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And you referred to the pardon of President Nixon.

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We have two things to say about that.

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President Nixon was accused of a wide range of purely private conduct.

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He was facing potential indictment for that at the time the pardon was issued.

[00:18:18] Speaker 04:
Back to purely private conduct, if we go to the indictment, they are not alleging purely, they're alleging that this is private conduct, but is subject to fraud, not official acts.

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So why don't you speak to that since you said that we have to look at the broader question as well as the indictment.

[00:18:34] Speaker 04:
Yes, Your Honor.

[00:18:36] Speaker 02:
So the allegations, the indictments, which the official acts, the only way to even characterize them as private acts is to turn to the alleged motive or purpose for them.

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So their whole theory, their characterization of the language and the indictment is, oh, we're alleging purely private conduct because it was engaged in for particular purposes.

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And that's foreclosed by a very long and strong line of Supreme Court presences.

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How does the Glass and Game case fit here that we, this circuit,

[00:19:01] Speaker 02:
distinguish office seeker versus office holder in terms of how you committing to X. This blazing game strongly reinforces what was said it's been said in Supreme Court cases and stump against sparkman going back to for example Marbury against Madison where it's the nature of the act itself.

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I understand the Blasingame opinion to reinforce that by saying it's an objective.

[00:19:21] Speaker 02:
They use the word objective multiple times.

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Objective context specific assessment.

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It does not turn on the purpose or motive.

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That was strongly pushed in Blasingame and this court properly rejected.

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That's consistent with Nixon against Fitzgerald, Bradley against Fisher, Spalding against Villas, Judge Hand's opinion against Gregoire.

[00:19:37] Speaker 02:
I mean, that's the strongest strong

[00:19:39] Speaker 04:
I'm sorry to my colleagues because I've taken up your time, but we'll give you what you need.

[00:19:45] Speaker 04:
With respect to the actual indictment, it does not gloss over what, you know, and put it in terms as you're describing.

[00:19:53] Speaker 04:
So if we look at the face of the indictment as to what's charged when it's gone through a grand jury process, unlike the impeachment judgment clause,

[00:20:03] Speaker 04:
How do we look at those particular acts as described?

[00:20:06] Speaker 04:
Because we have to take those at face value.

[00:20:08] Speaker 02:
There's clear guidance on this from Nixon against Fitzgerald where Nixon against Fitzgerald.

[00:20:12] Speaker 02:
The allegation was President Nixon had unlawfully terminated a whistleblower, essentially, and that whistleblower came into court and says this is not subject to immunity because it was unlawful.

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And the court said we're not looking at that granular level of detail and we're not considering most importantly the alleged motive for these acts.

[00:20:29] Speaker 02:
It said that the level of specificity to consider it is how

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conducting the business of the Air Force.

[00:20:34] Speaker 02:
Similar here, if you look at the indictment, there's five classes of conduct that are alleged, many of which are just obviously, obviously official conduct.

[00:20:41] Speaker 02:
Meeting with the U.S.

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Department of Justice about who should be the cabinet level officer running that is at the court land of the appointments power.

[00:20:48] Speaker 02:
You said many of which.

[00:20:49] Speaker 02:
I really, all of which, I mean, our conventions, all of which, there's one exception because there's allegations about the ELIP speech and under Blazingame, the contention was made that they should be remanded for that.

[00:20:58] Speaker 02:
But if you look at the other public standards, for example, President Trump's tweets, the Second Circuit held a Knight First Amendment Center that it was based on overwhelming evidence.

[00:21:07] Speaker 02:
That's an official channel.

[00:21:08] Speaker 02:
His Twitter account during the presidency was an official channel of government communication.

[00:21:12] Speaker 02:
And under the objective test in Blazingame, all those tweets are obviously

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immune.

[00:21:16] Speaker 02:
So also with meetings with the Department of Justice, meeting with members of Congress, that falls right within the heartland of Article 2, Section 3, which authorized the president to communicate with Congress about the matters that he views as expedient.

[00:21:28] Speaker 05:
Let me ask you, first of all, I don't believe you were counseled then, but what about the two concessions made in the first impeachment proceeding and then in Trump v. Vance that

[00:21:46] Speaker 05:
Impeachment should be staying and wait until he's out of office when he would be subject to criminal liability.

[00:21:54] Speaker 02:
As to Trump against Vance, it was purely private conduct that involved a criminal subpoena for tax records that long predated President Trump's time in office.

[00:22:03] Speaker 02:
So it was purely private conduct.

[00:22:05] Speaker 02:
The concession that he could be subject to prosecution is also correct.

[00:22:08] Speaker 02:
As for the impeachment brief, for example, that they cited in their briefs, what that says is we have a judicial process in this country, period.

[00:22:16] Speaker 02:
We have an investigative process in this country to which no former officer is immune.

[00:22:20] Speaker 02:
It did not say that we could never be raised immunity defense.

[00:22:23] Speaker 02:
It said criminal process can go forward.

[00:22:25] Speaker 01:
There's a quote in the congressional record in which your counsel, I'm sorry, your client said through counsel, no former office holder is immune from investigation and prosecution.

[00:22:35] Speaker 02:
investigation is what there's no need to.

[00:22:38] Speaker 02:
Well, that may be true of subordinate officers, but as to the principal officer, the president, he is immune unless he is impeached and convicted.

[00:22:45] Speaker 02:
Again, it comes back to the point.

[00:22:46] Speaker 01:
He was president at the time and his position was that no former office holder is immune.

[00:22:52] Speaker 01:
And in fact, the argument was there's no need to vote for impeachment because we have this backstop, which is criminal prosecution.

[00:23:02] Speaker 01:
And it seems that many senators

[00:23:04] Speaker 01:
relied on that voting to acquit.

[00:23:07] Speaker 02:
I think the court lacks the ability to intuit what motivated senators' votes in the impeachment process.

[00:23:18] Speaker 02:
What the Constitution says is you must be impeached.

[00:23:20] Speaker 01:
I think the question that Judge Henderson was asking you was you took

[00:23:24] Speaker 01:
the position or your client did during the impeachment proceedings that there would be an option for criminal prosecution later and it's in the congressional record.

[00:23:34] Speaker 01:
And I guess the question is what has changed or why have you changed your position?

[00:23:38] Speaker 02:
To agree with that characterization of the statements in the congressional record, I believe there was a distinction between the judicial process and the investigative process.

[00:23:45] Speaker 02:
That was in the quote that I just read.

[00:23:47] Speaker 02:
In addition to that, whatever concession may or may not have been made there would not have a ratio to kind of effect in this proceeding.

[00:23:53] Speaker 02:
These are very different proceedings.

[00:23:56] Speaker 02:
And again, so again, the notion that no one is immune from the judicial process and the judicial process should go forward.

[00:24:02] Speaker 02:
is fully consistent with the notion that defenses, including presidential immunity, which again, rooted in the separation of powers, we could be raised in those processes.

[00:24:11] Speaker 02:
So the notion that there could be a criminal process and then defenses like this could be raised in that process is, I think, pretty straightforward.

[00:24:18] Speaker 02:
There's no concession that there's no such thing as criminal immunity.

[00:24:21] Speaker 02:
There's no concession in those proceedings that

[00:24:23] Speaker 02:
what the district court in this case did, the very kind of astonishment holding that no president is criminally immune from prosecution is just, I think it's not there in the congressional record.

[00:24:34] Speaker 05:
Let me go back to Marbury versus Madison and you isolated that one sentence.

[00:24:42] Speaker 05:
Isn't it true that the progeny of Marbury versus Madison has distinguished between discretionary official acts

[00:24:52] Speaker 05:
and ministerial by which they mean imposed by law.

[00:24:57] Speaker 05:
And that it's the latter one in which he can be held liable.

[00:25:05] Speaker 05:
And I want you to address both USB Johnson and the Commonwealth of Virginia because the first one deals with the speech and debate clause.

[00:25:16] Speaker 05:
And the Supreme Court said, in essence, lock off all of the evidence dealing with the speech and debate.

[00:25:25] Speaker 05:
He can still be prosecuted, that is, that congressman.

[00:25:30] Speaker 05:
Or I think it was conspiracy to defraud the US of something.

[00:25:33] Speaker 05:
And then in the Commonwealth of Virginia, you had the judge who had been charged with a crime under which you could not discriminate

[00:25:46] Speaker 05:
in picking jurors based on rape.

[00:25:50] Speaker 05:
And my reading of that case is that the language that you isolate in your reply brief, that it could just as easily be done, that is the choosing of the jury, a ministerial act by someone on the street.

[00:26:11] Speaker 05:
To me, that means when you have a duty that is imposed by law,

[00:26:16] Speaker 05:
picking a jury they said was ministerial, imposed by law.

[00:26:20] Speaker 05:
Whether you're the man on the street, whether you're the president, whether in that case you're the judge, you can be held criminally liable.

[00:26:29] Speaker 05:
And that's how I read, if not Marbury, the progeny that is, you can't stop an official act.

[00:26:37] Speaker 05:
You have to say, was it a discretionary official act or was it a ministerial?

[00:26:44] Speaker 02:
I agree with that characterization of Marbury.

[00:26:46] Speaker 02:
I think that distinction is present in Marbury itself.

[00:26:49] Speaker 02:
And I think what I would respond to that is to say, first of all, that extension has never been extended up to the president.

[00:26:54] Speaker 02:
And for good reason, because for over 200 years, the courts have probably can't sit in judgment over the president's official acts under any circumstances.

[00:27:01] Speaker 02:
So for example, Mississippi against Johnson.

[00:27:06] Speaker 02:
That's correct.

[00:27:07] Speaker 02:
It's never arisen until this case.

[00:27:09] Speaker 02:
That is actually correct.

[00:27:09] Speaker 02:
But if you look at every civil context, what they've said, you keep in mind that what what Chief Justice Marshall says is never examineable, never examineable.

[00:27:17] Speaker 02:
So there would be no judicial proceeding where you could say the president did this and we're going to sit in judgment directly over that.

[00:27:23] Speaker 02:
That's reinforced by Mississippi against Johnson, by Swann against Clinton from this court more recently, where the courts hold that we can't even enjoin or even really enter a declaratory judgment directly against the president for his official acts.

[00:27:34] Speaker 02:
Whereas the distinction between ministerial and

[00:27:36] Speaker 02:
and discretionary has been held totally with respect to subordinate officers, and that goes all the way back to Marbury.

[00:27:45] Speaker 02:
However, if you look at the indictment, in this case, nothing that's alleged against President Trump could remotely be described as ministerial.

[00:27:51] Speaker 02:
I'm not aware the government has ever argued that if you're talking about, you know, responding to widespread allegations of fraud, abuse, and misfeasance in a presidential election, trying to find how to respond to that.

[00:28:01] Speaker 02:
And Mayor, that's in the national interest.

[00:28:02] Speaker 02:
interest.

[00:28:03] Speaker 02:
Matters of that nature are not ministerial at all.

[00:28:05] Speaker 02:
So even if that distinction goes all the way up to this, so to speak, it wouldn't save the indictment here.

[00:28:12] Speaker 05:
Why isn't it ministerial?

[00:28:14] Speaker 05:
His constitutional duty to take care that the laws be faithfully executed requires him to follow those laws.

[00:28:23] Speaker 05:
Every one of

[00:28:25] Speaker 02:
I would say that the take care clause, carrying out one's duties in the take care clause are inherently discretionary.

[00:28:32] Speaker 02:
An example of a ministerial act, for example, in Marbury against Madison is like delivering a seal when you're requested because there's a separate statute, right?

[00:28:41] Speaker 02:
What they emphasize is there's a separate statute.

[00:28:42] Speaker 02:
The secretary of state had kind of these two hats on.

[00:28:45] Speaker 02:
He was on one hand a direct agent of the president in that.

[00:28:48] Speaker 02:
could never be examined by the courts.

[00:28:51] Speaker 02:
On the other hand, the original statute had posed all these like purely ministerial duties that had to do with record keeping and delivering documents.

[00:28:58] Speaker 02:
Like if you've got a land deed that's got a seal on it and person asked for it where there's no discretion at all.

[00:29:03] Speaker 02:
When you're talking about the take care clause, there's no statute that could impose on the president a mandatory duty to engage.

[00:29:12] Speaker 02:
I mean, the notion that

[00:29:13] Speaker 02:
when the president's meeting with the Department of Justice, for example, saying, hey, we should investigate and enforce federal fraud statutes, the notion that that's ministerial strikes me as insupportable.

[00:29:25] Speaker 05:
Well, I think you're missing what I'm asking, which is, I think it's paradoxical to say that his constitutional duty to take care that the laws be faithfully executed

[00:29:44] Speaker 05:
allows him to violate criminal laws.

[00:29:49] Speaker 05:
Now, we're at the motion to dismiss stage.

[00:29:54] Speaker 05:
The government has charged the specific criminal laws.

[00:29:57] Speaker 05:
We have to assume they're true.

[00:29:59] Speaker 02:
I mean, my response to that I think would be to emphasize what Chief Justice Marshall said in Marbury, which is that they can never be example by courts.

[00:30:07] Speaker 02:
That naturally includes a criminal proceeding.

[00:30:09] Speaker 05:
But I thought you agreed with me that we've gotten beyond

[00:30:13] Speaker 05:
Marbury in the sense that official act has been subdivided into discretionary and duty bound or ministerial.

[00:30:24] Speaker 05:
And in the ministerial or duty bound, at least with respect to even legislators and judges, they have been held criminally law.

[00:30:37] Speaker 05:
And that's in the face, at least with respect to the legislators of an explicit constitutional privilege.

[00:30:43] Speaker 02:
Yeah, I don't view United States against Johnson and even ex parte Virginia as resting on the ministerial versus discretionary distinction.

[00:30:49] Speaker 02:
I think what Johnson says is, it doesn't say, hey, when you were doing these other things, they were ministerial.

[00:30:55] Speaker 02:
What it says is these were not legislative acts, right?

[00:30:57] Speaker 02:
And so it draws the distinction between legislative and non-legislative acts.

[00:31:01] Speaker 02:
So also, I think that's the right reading of ex parte Virginia.

[00:31:04] Speaker 02:
They go on to say judicial act.

[00:31:06] Speaker 02:
And notice the argument that picking a jury, I don't even believe they use the word, to my recollection, ministerial.

[00:31:13] Speaker 05:
They were criminal acts, picking the jury based on race as a criminal act and whatever Johnson did, I think it was the very same statute fraud against the United States that is before us today.

[00:31:28] Speaker 02:
I would say that the distinction in those cases is between in the judicial case Johnson

[00:31:33] Speaker 02:
legislative case Johnson is between legislative acts and non-legislative acts.

[00:31:41] Speaker 02:
The distinction in ex parte Virginia is between judicial acts and non-judicial acts.

[00:31:47] Speaker 02:
That phrase is used in here.

[00:31:48] Speaker 02:
The distinction is between presidential acts and non-presidential acts and everything that's alleged in the indictment is a presidential act.

[00:31:55] Speaker 02:
Your Honor, I see I think.

[00:31:57] Speaker 01:
May I?

[00:31:58] Speaker 01:
There are a number of precedents.

[00:32:02] Speaker 01:
or cases in which the Supreme Court has reviewed actions by the president.

[00:32:08] Speaker 01:
The seminal case of Youngstown Sheet and Tube, where the Supreme Court reviewed Harry Truman's seizure of the steel mills during the Korean War.

[00:32:16] Speaker 01:
There's also the case of Little Berim, where, Little versus Berim, where Chief Justice Marshall reviewed the actions of President Adams when he seized certain vessels.

[00:32:26] Speaker 01:
Trump versus Hawaii was reviewing President Trump's order restricting the entry into the United States

[00:32:31] Speaker 01:
of nationals from certain foreign countries.

[00:32:34] Speaker 01:
How does that square with your position that a judiciary can never review executive action?

[00:32:41] Speaker 02:
All those cases fall squarely within the well-established exception in Ex parte Young, where the judiciary is allowed and does frequently issue declaratory judgments, injunctions, judgments against subordinate officers.

[00:32:55] Speaker 01:
These are presidents.

[00:32:56] Speaker 01:
Harry Truman was the president when he seized the steel mill.

[00:32:59] Speaker 01:
How does that comport with your theory?

[00:33:01] Speaker 02:
In that case, it was an injunction against the secretary of Congress, not against the president.

[00:33:05] Speaker 02:
This court has reaffirmed very recently that you cannot issue an injunction directly against the president.

[00:33:10] Speaker 02:
The court has no jurisdiction to do that.

[00:33:12] Speaker 02:
It strongly indicates in New Dow against Roberts that the court can't even enter a declarative judgment.

[00:33:17] Speaker 01:
The court can review presidential action if, on paper, they direct their judgment to a supporting officer.

[00:33:23] Speaker 01:
Is that what you're saying?

[00:33:25] Speaker 01:
Because these are presidential actions.

[00:33:27] Speaker 02:
The court can definitely enjoy the actions of subordinate officers that violate the constitution that is ex parte young.

[00:33:33] Speaker 01:
All the cases fall within that.

[00:33:34] Speaker 01:
I'm asking you a different question because these are presidential decisions, presidential actions, and you're saying that the court can review presidential actions as long as when they issue the judgment, they issue it to a subpoena.

[00:33:46] Speaker 02:
In direct context, it can't directly sit in judgment over the presence of officials.

[00:33:50] Speaker 02:
It's been established for over two years.

[00:33:54] Speaker 04:
You're using the impeachment judgment clause essentially as a negative implication with respect to that the civilian officer or president, of course, has to be impeached and convicted and then nevertheless thereafter.

[00:34:08] Speaker 04:
If there is an acquittal, how are you using it in that regard?

[00:34:12] Speaker 04:
Because sometimes and particularly in this case, the acquittal can arise from lack of jurisdiction, not actually trying the merits of the case.

[00:34:20] Speaker 02:
The impeachment judgment clause does distinguish between those sort of merits-related acquittals and non-merits-related acquittals.

[00:34:28] Speaker 02:
Frankly, the same sort of thing comes up in just criminal prosecutions under the Double Jeopardy Clause, where a determination that the defendant is acquitted does not necessarily reflect an actual determination that they're not.

[00:34:40] Speaker 02:
factually guilty.

[00:34:41] Speaker 02:
And in fact, this is emphasizing the OLC memo that they themselves address that actually, you know, that determination often reflects things that are distinct from the merits.

[00:34:50] Speaker 02:
So that doesn't, I think, in any way undermined the sort of double jeopardy force, so to speak, of the impeachment judgment clause.

[00:34:55] Speaker 04:
And one of the briefs indicated that Jack Smith is improperly appointed.

[00:35:00] Speaker 04:
Do you have a position there?

[00:35:02] Speaker 02:
It's a very persuasive brief, but I can see we have not raised in this case.

[00:35:05] Speaker 02:
I think it raises very powerful questions, but we haven't raised in this case at this time.

[00:35:10] Speaker 05:
Just about the effect of blasting game.

[00:35:13] Speaker 05:
If we say we can't determine if these acts are official or private, I want to stay away from that.

[00:35:25] Speaker 05:
I'm going to say ministerial or discretionary.

[00:35:28] Speaker 05:
And blasting game characterized in terms of office seat or versus office holder.

[00:35:37] Speaker 05:
What is your position about

[00:35:40] Speaker 05:
would we have to remand it for the district judge to decide in the first instance whether these various, the four points that the defense has made against imposing criminal liability hinge on whether the acts are ministerial, discretionary, official, private, or however you want to characterize it.

[00:36:08] Speaker 02:
I use the phrase from Clinton against Jones, which says purely private conduct is what can be, you know, subject to judicial process after a president leaves office.

[00:36:17] Speaker 02:
In response to your question, our principal position is you can look at this indictment and it alleges official acts and it can be ordered to be dismissed.

[00:36:24] Speaker 02:
We acknowledge, though, that the district court didn't reach that issue, but Blazingame did remand and the court absolutely has the discretion to remand to the district court for the application of the doctrine of criminal immunity in the first instance.

[00:36:35] Speaker 02:
And we admit that that would be a natural thing for the court to do.

[00:36:38] Speaker 05:
specific ads.

[00:36:39] Speaker 02:
Correct.

[00:36:40] Speaker 02:
Yeah.

[00:36:40] Speaker 02:
In other words, if the court holds that there is presidential immunity, which it should, then remand to the district court to say, okay, go through the indictment and or else hold factual findings and so forth to decide how it applies to the conduct alleged in this case.

[00:36:52] Speaker 02:
We acknowledge that would be the court has the discretion to do that.

[00:36:55] Speaker 02:
And that would be a natural course.

[00:36:57] Speaker 02:
Uh, and if there are no further questions.

[00:37:00] Speaker 01:
Um, I have one more question.

[00:37:01] Speaker 01:
So under the framework established in or discussed in Nixon versus Fitzgerald,

[00:37:07] Speaker 01:
We're supposed to conduct a balancing test where we balance the need for the asserted immunity versus other public interests.

[00:37:15] Speaker 01:
And I see you as trying to represent a need for the executive to have this immunity to facilitate executive functions.

[00:37:27] Speaker 01:
The ability to act without hesitation, to be fearless, to make decisions without being inhibited by the fear

[00:37:37] Speaker 01:
a prosecution.

[00:37:38] Speaker 01:
But it seems to me that there are some other Article II interests here that are countervailing.

[00:37:44] Speaker 01:
For example, under Article II, there's an executive vesting clause.

[00:37:50] Speaker 01:
And so there is an interest of the executive branch as an institution to have constitutional executive power vest in a newly elected president.

[00:38:04] Speaker 01:
There's also an executive interest as an institution in law enforcement, in enforcing criminal laws.

[00:38:12] Speaker 01:
And so it seems to me if we're weighing executive interests versus public interests, public interests and things like the integrity of an election, that President Trump's position is not fully aligned with the institutional interests of the executive branch.

[00:38:31] Speaker 01:
And in this balancing test, that weakens the executive power that he's trying to assert.

[00:38:39] Speaker 02:
I say three things in response to that.

[00:38:41] Speaker 02:
First of all, Nixon against Fitzgerald emphasizes that the most compelling consideration when one considers what it describes as policy considerations rooted in the separation of powers is the rendering of the executive branch official unduly cautious

[00:38:54] Speaker 02:
unduly cautious in the exercise of highly controversial and sensitive decisions that come up all the time.

[00:38:59] Speaker 02:
If a president has to look over his shoulder or her shoulder every time he or she has to make a controversial decision and worry, after I leave office, am I going to jail for this?

[00:39:08] Speaker 01:
When my political opponents take power, that inevitably dampens the ability of the president to- I understand that that's your position, but I guess I'm asking you, what about other Article II interests?

[00:39:19] Speaker 01:
That's one interest, but there are other Article II interests in play here too.

[00:39:24] Speaker 01:
and they seem to be countervailing.

[00:39:26] Speaker 01:
The interest in executive vesting, the interest in law enforcement, those are also executive branch interests.

[00:39:33] Speaker 01:
And how should that affect the analysis?

[00:39:35] Speaker 02:
To the extent the court conducts a balancing our principal positions, you can go back to Marbury versus Madison and adopt a categorical rule, which is also a reference in Nixon against Fitzgerald.

[00:39:43] Speaker 02:
But to the extent the court reaches the balancing of policy considerations, those were decisively outweighed by the sort of republic-shattering consequences of subjecting our chief executives in an endless cycle to prosecution once they leave office.

[00:39:58] Speaker 02:
The founders were very much against that.

[00:40:00] Speaker 02:
They were deeply concerned with that.

[00:40:01] Speaker 02:
You see that in Hamilton's writings in Federalist 65, 69, and 77.

[00:40:06] Speaker 02:
You see it reflected in Madison's concern about New Franklin and artificial treasons in Federalist 47.

[00:40:11] Speaker 03:
And that is the original meaning of the Constitution.

[00:40:15] Speaker 05:
Do you think we should, it just occurred to me, do you think we should take any cognizance of the fact that when they wrote that, George Washington was the president.

[00:40:28] Speaker 05:
I mean, a very, very strong executive, that Congress was brand new, that everything else was brand new.

[00:40:37] Speaker 05:
And things have balanced out.

[00:40:41] Speaker 05:
I mean, we've got a strong Congress, we've got a strong judiciary,

[00:40:44] Speaker 05:
and we've got a strong president.

[00:40:47] Speaker 02:
I think that if you look at the writings of the founders, they were definitely looking past the presidency of George Washington, obviously an iconic figure, looking past the presidency of George Washington, future presidencies, and they correctly anticipated that the nation might, what they're deeply concerned about was that the nation would devolve into factions.

[00:41:04] Speaker 02:
Factionalism did not govern the presidency of George Washington because of his moral authority.

[00:41:10] Speaker 02:
However, immediately when you got to Adams and Jefferson, you immediately devolved into factions.

[00:41:14] Speaker 02:
They correctly anticipated

[00:41:15] Speaker 02:
And we're deliberately looking past that presidency to the future of the Republic, a tradition that stood for 234 years until last year when it was shattered by the indictment of President Trump.

[00:41:25] Speaker 02:
And if the Court has no further questions, we would ask the Court to reverse.

[00:41:29] Speaker 02:
And if the Court rules against us in any respect, we renew our request that the Court stay its mandate to allow us to seek further review, both in bank and for Supreme Court review.

[00:41:40] Speaker 02:
Thank you, Your Honor.

[00:41:44] Speaker 05:
OK.

[00:41:44] Speaker 05:
Mr. Pierce.

[00:41:49] Speaker 00:
Good morning and may it please the court.

[00:41:52] Speaker 00:
Never in our nation's history until this case has a president claimed that immunity from criminal prosecution extends beyond his time office.

[00:42:02] Speaker 00:
The president has a unique constitutional role

[00:42:06] Speaker 00:
but he is not above the law.

[00:42:08] Speaker 00:
Separation of powers principles, constitutional text, history, precedent, and other immunity doctrines all point to the conclusion that a former president enjoys no immunity from criminal prosecution.

[00:42:21] Speaker 00:
At a minimum, this case, in which the defendant is alleged to have conspired to overturn the results of a presidential election, is not the place to recognize some novel form of criminal immunity.

[00:42:33] Speaker 00:
Now, I want to start with jurisdiction as Judge Childs raised.

[00:42:38] Speaker 00:
It is our view that the court has and should entertain both claims before it.

[00:42:44] Speaker 00:
With respect to the immunity claim, I think this court's decision in Cisneros 10 years after Midland Asphalt did allude to a type of separation of powers claim

[00:42:56] Speaker 00:
that would involving presidential immunity.

[00:42:58] Speaker 00:
I think Judge Henderson pointed out the Supreme Court itself has acknowledged that this idea of an explicit guarantee is more of a suggestion than some sort of statutory prescription.

[00:43:09] Speaker 04:
But there's been no cases since then that have actually used that word suggestion to follow up on that line of thinking.

[00:43:16] Speaker 00:
Within Supreme Court, I don't believe there have been cases, but certainly this court in Cisneros as well as in cases also post Midland Asphalt like Rose, Rostenkowski, and Durenberger have recognized that this type of a separation of powers claim when you're talking about immunity is something for which a collateral order, appellate jurisdiction on a collateral order theory is available.

[00:43:40] Speaker 04:
other circuits.

[00:43:41] Speaker 04:
I think it's first, second and 10th that keep following that line of thinking with respect to Midlands asphalt requires an explicit constitutional or statutory language that says you cannot be tried.

[00:43:54] Speaker 00:
So two responses.

[00:43:55] Speaker 00:
One, I think in cases like Cisneros, this court has spoken otherwise.

[00:43:59] Speaker 00:
But nonetheless, I think the only one there is the First Circuit's decision in Joseph, where it was the case of a judge seeking a criminal, raising an immunity defense to a criminal prosecution.

[00:44:11] Speaker 00:
As this court acknowledged in both, I believe, Rostenkowski and Durenberger, that's in some tension with, or it didn't acknowledge that.

[00:44:18] Speaker 00:
But the court there talked about Claiborne

[00:44:22] Speaker 00:
and Hastings, which are 9th Circuit and 11th Circuit cases.

[00:44:26] Speaker 00:
I think Judge Easterbrook, in his shock opinion, noted that when it deals with a personal immunity like that, it's different than the kind of transactional immunities that were considered in the 10th and the 2nd Circuit cases.

[00:44:37] Speaker 00:
And at the end of the day, I think we do sort of a small point of common ground between us and the defendant.

[00:44:42] Speaker 00:
We do think that with respect to jurisdiction, there is a little bit of a different inquiry with respect to a president.

[00:44:48] Speaker 00:
We don't think that carries over to the merits in the least.

[00:44:51] Speaker 00:
And I think United States versus Nixon is sort of the perfect example of that.

[00:44:55] Speaker 00:
There, the court said it would be unseemly to hold the president, to require the president to go into contempt.

[00:45:02] Speaker 00:
Nonetheless, reaching the merits, of course, rejected President Nixon's absolute executive privilege claim and required that the- You don't see a distinction on the civil versus criminal context because the cases I'm referring to are civil criminal cases.

[00:45:15] Speaker 00:
So I don't.

[00:45:18] Speaker 00:
And Rose said as much here when talking about civil and criminal with respect to speech or debate.

[00:45:24] Speaker 00:
And again, I mean, I know that Nixon versus Fitzgerald is a civil case.

[00:45:28] Speaker 00:
And we strongly disagree that it should be applied here for many of the reasons that Judge Pan set out.

[00:45:33] Speaker 00:
But I do think with respect to the immunity, again, given the language in Rose, that would supply basis for this court to entertain the immunity claim.

[00:45:42] Speaker 01:
But why aren't you taking the position that we should dismiss this appeal?

[00:45:45] Speaker 01:
Because it's interlocutory.

[00:45:48] Speaker 01:
Doesn't that advance your interests?

[00:45:50] Speaker 00:
Our interests are twofold.

[00:45:53] Speaker 00:
One, as in the United States versus Nixon, it is doing justice.

[00:45:56] Speaker 00:
And then a second is indeed to move promptly to satisfy and vindicate the public's and the defendant's interest in a prompt resolution of this trial.

[00:46:05] Speaker 00:
But doing justice means getting the law right.

[00:46:07] Speaker 00:
And it's our view that even if a dismissal on jurisdiction might move this case faster, actually empirically that's hard to know, we just don't think that's the right analysis here on either immunity or the second claim.

[00:46:20] Speaker 01:
So we have a line of cases including Kramer versus Gates and American Hospital Association versus Azar.

[00:46:29] Speaker 01:
It says that we can assume hypothetical statutory jurisdiction and reach the merits of a case.

[00:46:37] Speaker 01:
Statutory jurisdiction being distinct from Article 3 jurisdiction which we could never assume because that implicates the power of the court to act.

[00:46:45] Speaker 01:
So if we had discretion to reach the merits versus just dismissing this case under Midland Asphalt, which I think is a strong precedent, which suggests that this appeal is interlocutory and does not fall under the collateral order doctrine, how should we determine how to exercise that jurisdiction about whether or not we should reach the merits?

[00:47:10] Speaker 00:
So I think in the American hospitals decision, the 2020 decision, the court said the formulation was something like we're doubtful as to our jurisdiction.

[00:47:19] Speaker 00:
But nonetheless, invoking the line of cases you've just described went on to decide the merits.

[00:47:25] Speaker 00:
We would urge the courts to do the same here, even if it entertains doubts with respect to the jurisdiction.

[00:47:31] Speaker 00:
Yes, hypothetical statutory jurisdiction is available under the law of the circuit.

[00:47:36] Speaker 00:
The court should use that to reach the merits.

[00:47:37] Speaker 04:
But doesn't that lead to a hypothetical decision and an advisory opinion?

[00:47:41] Speaker 00:
No, I think that so we disagree.

[00:47:44] Speaker 04:
The Supreme Court has said that.

[00:47:45] Speaker 00:
No, I don't think the Supreme Court has said that.

[00:47:47] Speaker 00:
I mean, the Steele Co.

[00:47:48] Speaker 00:
is kind of the leading Supreme Court decision.

[00:47:50] Speaker 00:
And then some courts, including this court, has devised a hypothetical statutory jurisdiction doctrine.

[00:47:58] Speaker 00:
Now, if this court were to dismiss for lack of jurisdiction and then say, nonetheless, as an alternative holding,

[00:48:06] Speaker 00:
Here's how we would come out on the merits.

[00:48:08] Speaker 00:
That, I think, would be improper.

[00:48:09] Speaker 00:
And that is what I understand the American Oversight Brief to be suggesting at footnote 11 on page 20 of its brief.

[00:48:16] Speaker 00:
That, I don't think, is something the court could do.

[00:48:18] Speaker 00:
I understand the hypothetical statutory jurisdiction piece to allow the court to say, you know what?

[00:48:23] Speaker 00:
This is hard.

[00:48:25] Speaker 00:
There might be arguments on both sides.

[00:48:27] Speaker 00:
We assume hypothetical statutory jurisdiction.

[00:48:30] Speaker 00:
We move forward.

[00:48:31] Speaker 00:
We decide the merits.

[00:48:33] Speaker 05:
Now let me ask you about Marbury Smith.

[00:48:37] Speaker 05:
What's your interpretation of his progeny or even the case itself?

[00:48:45] Speaker 00:
So.

[00:48:46] Speaker 00:
Our interpretation is much closer in line with what I think I heard Judge Pan setting out and similar to yours.

[00:48:53] Speaker 00:
It certainly does not erect a unreviewable power for the presidency.

[00:48:58] Speaker 00:
I think sort of the prime example of that is the Steele-Sheezer case, the Youngstown case.

[00:49:04] Speaker 00:
That was President Truman closing the steel mills.

[00:49:07] Speaker 00:
That was the court coming in and reviewing that.

[00:49:10] Speaker 00:
We see that all the way through to the present.

[00:49:12] Speaker 00:
And so it's hard to see any world in which the court just says, we can't intervene here.

[00:49:20] Speaker 00:
I accept the court's, Judge Henderson, the distinction between ministerial and discretionary acts.

[00:49:28] Speaker 00:
Compliance with the law is not some sort of discretionary call.

[00:49:32] Speaker 00:
It is something that I fully endorse or agree with the idea of the paradox of a president

[00:49:39] Speaker 00:
on the one hand, having the article to take care responsibility, and on the other hand, sort of seeing the laws as compliance with the law is optional.

[00:49:46] Speaker 05:
Let me switch and ask you, how do we write an opinion that would stop the floodgates?

[00:49:57] Speaker 05:
Your predecessors in their OLC opinions recognize that criminal liability would be unavoidably political.

[00:50:08] Speaker 00:
So a couple of responses.

[00:50:11] Speaker 00:
For one, of course, that was with respect to a sitting president.

[00:50:15] Speaker 00:
I think the analysis is extraordinarily different with respect to a former president, which OLC in that very same, I'm sorry.

[00:50:23] Speaker 05:
But not with respect to being necessarily political.

[00:50:29] Speaker 00:
Well, I think there is a political process, which is impeachment, and we can talk about that.

[00:50:34] Speaker 00:
But there is a legal process, which is decidedly not political.

[00:50:38] Speaker 00:
And that is a process which has the kinds of safeguards that a couple of members of the court here have already referred to.

[00:50:44] Speaker 00:
We're talking about prosecutors who follow strict codes and who are presumed to act with regularity, grand jurors, penit jury eventually, and this court sort of standing, your Article III court standing above it.

[00:51:00] Speaker 00:
But I also want to push back a little bit against this idea of a floodgate.

[00:51:04] Speaker 00:
At least since the Watergate era, 50 years ago, has there been widespread societal recognition, including by presidents and the executive branch, that a former president is subject to criminal prosecution.

[00:51:17] Speaker 00:
And Nixon was not about that.

[00:51:19] Speaker 00:
private conduct.

[00:51:21] Speaker 00:
Nixon was about, among other things, using the CIA to try to interfere with an FBI investigation.

[00:51:26] Speaker 00:
He then accepts a pardon, understanding that after having resigned.

[00:51:31] Speaker 00:
So again, I think that also undermines this impeachment-first argument.

[00:51:35] Speaker 00:
After Nixon, we then see a series of independent and special prosecutors investigating a range of different types of conduct.

[00:51:43] Speaker 00:
You saw independent counsel Lawrence Walsh in the Iran-Contra affair.

[00:51:47] Speaker 00:
That's an example that the defendant invokes in his reply brief.

[00:51:51] Speaker 00:
In chapter 27 of that report, the independent counsel assumes that President Reagan is subject to prosecution and says,

[00:51:59] Speaker 00:
But we don't we didn't get there evidentiary right there would not have not that we thought there was some sort of immunity and that has continued through to the present and so this notion that we're all of a sudden going to see a floodgate, I think.

[00:52:12] Speaker 00:
Again, the careful investigations in the Clinton era didn't result in any charges.

[00:52:18] Speaker 00:
The fact that this investigation did doesn't reflect that we are going to see a sea change of vindictive tit for tat prosecutions in the future.

[00:52:28] Speaker 00:
I think it reflects the fundamentally unprecedented nature of the criminal charges here.

[00:52:34] Speaker 00:
Never before has there been allegations that a sitting president has, with private individuals and using the levers of power, sought to fundamentally subvert the Democratic Republic and the electoral system.

[00:52:47] Speaker 00:
And frankly, if that kind of fact pattern arises again, I think it would be awfully scary if there weren't some sort of mechanism by which to reach that criminally.

[00:52:57] Speaker 04:
In your brief, you raised some sort of lesser immunity potentially applying.

[00:53:02] Speaker 04:
Want to speak to that?

[00:53:03] Speaker 00:
I do.

[00:53:04] Speaker 00:
We don't think that comes into play here.

[00:53:07] Speaker 00:
I think the point was, in some more challenging cases, it might be that where a president is operating under extraordinary time pressure has to make a very difficult national security type of decision.

[00:53:23] Speaker 00:
Do I go in and commit this kind of, do we order the drone strike under these circumstances?

[00:53:29] Speaker 00:
A president will often have a cadre of lawyers to advise him or her.

[00:53:34] Speaker 00:
The lawyers say, Madam President, we'll get to a memo in two months.

[00:53:39] Speaker 00:
That's not going to be enough in that situation.

[00:53:41] Speaker 00:
If there were a drone strike, civilians were killed,

[00:53:45] Speaker 00:
that theoretically could be subject to some sort of prosecution as murder, I think that might be the kind of place in which the court would properly recognize some kind of immunity.

[00:53:56] Speaker 00:
But that is, of course, nothing like what we've got here.

[00:54:00] Speaker 00:
I sort of take the former officials brief discussing the vesting clause to talk about the nature of charges when they focus on, again, subverting the electoral process.

[00:54:12] Speaker 00:
At a minimum, there should be no type of immunity that covers that.

[00:54:16] Speaker 01:
So are you saying it should be a case-by-case balancing in each case, whether there's immunity?

[00:54:20] Speaker 01:
Or how does this work as a legal standard?

[00:54:23] Speaker 00:
So we think that it should just be, as the district court held, finding there is a balancing under Fitzgerald, right?

[00:54:30] Speaker 00:
That's our view.

[00:54:31] Speaker 00:
You start with this question.

[00:54:32] Speaker 00:
What are the burdens against the presidency?

[00:54:35] Speaker 00:
And what are the interests to be furthered?

[00:54:38] Speaker 00:
I think the answer to that question under Fitzgerald, we think that the burdens that my friend talks about on the other side are overstated.

[00:54:46] Speaker 00:
I'm happy to just describe why we think the interest in the public's interest in an ongoing criminal prosecution means that there should be an across the board rule that a former president is indeed subject to criminal prosecution.

[00:55:01] Speaker 00:
What I'm describing in response to Judge Child's questions is in a particular case,

[00:55:06] Speaker 00:
Might there be some extraordinary circumstance where a former president could invoke an immunity?

[00:55:14] Speaker 00:
Maybe.

[00:55:14] Speaker 00:
I don't think the court has to reach that there.

[00:55:16] Speaker 00:
I think the court could run an opinion that reserves and says, based on the nature of the allegations, which we take as true, there is no reason to recognize that here.

[00:55:25] Speaker 00:
And so I don't think it needs to be a case by case analysis, but I think the court can reserve that type of question to the extent it gives one pause about a president in future situations.

[00:55:36] Speaker 04:
Can you answer the question I posed earlier to your opposing counsel about, are we to look at the broader question that was dealt with by Judge Chuckin with respect to presidential immunity,

[00:55:52] Speaker 04:
no criminal process, absolute immunity for no criminal prosecution of official acts.

[00:55:57] Speaker 04:
This is looking at this indictment and accepting as true the allegations that it brought there or both.

[00:56:03] Speaker 00:
So we have a strong preference that the court adopts the former view and looks at the question in the way of, as the district court did, which is to say, based on questions of separation of powers, of constitutional text, history, precedent, is there, in fact, immunity for a former president?

[00:56:24] Speaker 00:
We think the answer to that is no, for, of course, all of the reasons we put in the brief and I'm happy to address here.

[00:56:31] Speaker 00:
Candidly, I think if the court gets to that second question, there are some hard questions about the nature of official acts.

[00:56:37] Speaker 00:
And frankly, as I think Judge Pan's hypothetical described, I mean, what kind of world are we living in if, as I understood my friend on the other side to say here, a president orders his SEAL team to assassinate a political rival and resigns, for example, before an impeachment?

[00:56:55] Speaker 00:
Not a criminal act.

[00:56:56] Speaker 00:
President sells a pardon, resigns, or is not impeached?

[00:57:00] Speaker 00:
Not a crime.

[00:57:02] Speaker 00:
I think that is extraordinarily frightening future.

[00:57:05] Speaker 00:
And that is the kind of, we're talking about a balancing and a weighing of the interest.

[00:57:09] Speaker 00:
I think that should weigh extraordinarily heavily in the court's consideration.

[00:57:13] Speaker 05:
Let me ask you about the effect of blasting game.

[00:57:20] Speaker 05:
How does it either bind us?

[00:57:22] Speaker 05:
How is it persuasive for us?

[00:57:24] Speaker 00:
So I think it formally has no application at all because, of course, very early on in the opinion, the court says, we're not dealing with any questions of immunity in the criminal context.

[00:57:37] Speaker 00:
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.

[00:57:45] Speaker 00:
It says, you don't look at intent or you don't look at purpose.

[00:57:49] Speaker 00:
Context plays a more important role than often the content of communications.

[00:57:54] Speaker 00:
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.

[00:58:07] Speaker 00:
But again, to go back to my response to Judge Childs' question, although that 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.

[00:58:22] Speaker 00:
In fact, that would be inconsistent with Fitzgerald's reasoning and also just irreconcilable with the nature of how criminal law

[00:58:30] Speaker 00:
works.

[00:58:31] Speaker 00:
I mean, to say that we're not going to take account of motive or intent, there are plenty of acts that every day.

[00:58:39] Speaker 00:
I mean, for example, if I were to encourage someone not to testify at trial because I wanted to go on a hike with that person, it's not a crime.

[00:58:48] Speaker 00:
If I were to encourage someone not to go on a hike because

[00:58:51] Speaker 00:
their testimony at trial, sorry, encourage them to skip their trial testimony because their testimony was going to incriminate me.

[00:58:59] Speaker 00:
It's the same underlying act.

[00:59:01] Speaker 00:
And now when you map that onto the criminal, to the presidential context, you come up with some of the frightening hypotheticals where as long as something is plausibly official, even if it involves assassinating a prominent critic or a business rival,

[00:59:18] Speaker 00:
that would seem to then be exempt potentially from criminal prosecution.

[00:59:25] Speaker 00:
We certainly wouldn't concede that if that's the world we need to live in.

[00:59:28] Speaker 00:
I think we would advance plenty of arguments below.

[00:59:30] Speaker 00:
But those arguments themselves would create satellite litigation that are an additional reason not to go down this route.

[00:59:39] Speaker 04:
But looking and thinking about your answer about potentially not looking at motive and intent, when there is a criminal prosecution, that mens rea and that intent is part of the actual statute charged criminally.

[00:59:52] Speaker 00:
Yes, precisely.

[00:59:53] Speaker 00:
And that's why it wouldn't make sense to then come in and use this non-motive intent.

[00:59:58] Speaker 00:
As I understand how Fitzgerald Outer Perimeter Standard might work, it could say those types of official acts, official conduct,

[01:00:07] Speaker 00:
of that is something from which the president is immune.

[01:00:10] Speaker 00:
You don't ever get to that second question of, well, did that person act then with mens rea?

[01:00:17] Speaker 00:
Can we prove it beyond a reasonable doubt?

[01:00:18] Speaker 00:
Because it is at least under a theory where it's not available at trial, then there's no way to reach that conduct.

[01:00:25] Speaker 04:
When we're looking at this indictment, though, back to Judge Henderson's question about the use of blasting game, some of the acts are same or similar, and there was direct discussion of it in that opinion as determining whether it was office seeker versus office holder.

[01:00:42] Speaker 04:
So do we use blasting game, at least for that?

[01:00:45] Speaker 00:
So if this court decides the case the way the district court did, then I don't think blasting game has any role to play at all.

[01:00:55] Speaker 00:
Because there is no question of whether was this act official or were these sets of allegations official.

[01:01:01] Speaker 00:
The question is, based on a Fitzgerald analysis and history precedent, et cetera, is there any quantum of immunity for a former president?

[01:01:12] Speaker 00:
We think the answer to that question is no.

[01:01:13] Speaker 00:
There's no reason, as the district court also found, to turn to the indictment and consider this civil outer perimeter standard.

[01:01:29] Speaker 00:
So there are a lot of different ways this court could not decide it that way.

[01:01:33] Speaker 00:
I think to pick up on my response to Judge Childs, we certainly stand by our view in the brief that some substantial number of allegations would fall outside of an outer perimeter.

[01:01:46] Speaker 00:
And that, I think, is enough to affirm.

[01:01:49] Speaker 00:
I think either parties are urging the court at that point to then send, of course, the case back to the district court.

[01:01:54] Speaker 00:
I think that then would create a series of challenging questions that I mentioned earlier.

[01:01:58] Speaker 00:
What are the evidentiary theories under which that evidence could potentially come in?

[01:02:06] Speaker 00:
But it would be our strong view, and we would want, if the court followed that route, which we urge the court not to,

[01:02:12] Speaker 00:
to make clear that immunity is an on-off switch, right?

[01:02:16] Speaker 00:
This is the immunity appeal.

[01:02:18] Speaker 00:
If the court says, we affirm, we send it back, there's no immunity, then other things become evidentiary questions or questions really of jury instructions in which any appeal is then an appeal from a final judgment, if any final judgment.

[01:02:32] Speaker 04:
And the immunity defense is never lost?

[01:02:37] Speaker 00:
Well, I don't think it's immunity at that point.

[01:02:39] Speaker 00:
I think this court will, in what I've just described, will have said there is no immunity.

[01:02:42] Speaker 00:
There may be some types of other challenges as evidence comes in a trial.

[01:02:48] Speaker 00:
But again, I think that would lead to this extraordinarily complicated litigation that is not the top line reason, but certainly among the reasons why the court should not go down that path.

[01:02:59] Speaker 01:
Since President Trump concedes that a president can be criminally prosecuted under some circumstances,

[01:03:07] Speaker 01:
He says that that is true only if he is first impeached and convicted by Congress.

[01:03:13] Speaker 01:
Do you agree that this appeal largely boils down to whether he's correct in his interpretation of the impeachment judgment clause?

[01:03:22] Speaker 01:
That is, if he's correct that the impeachment judgment clause includes this impeachment first rule, then he wins.

[01:03:32] Speaker 01:
And if he's wrong, if we think the impeachment judgment clause does not

[01:03:36] Speaker 01:
contain an impeachment first rule, then he loses.

[01:03:39] Speaker 00:
So I think that's basically right.

[01:03:41] Speaker 00:
I mean, the defendant's theory over the course of this litigation has evolved a bit.

[01:03:44] Speaker 00:
And I think now, before this court, I understand the argument to be principally, sort of the principal submission to be, as you've just described, what we call in our brief, the conditioned precedent argument, that there is only liability, criminal liability, for a former president if that president has been impeached and convicted.

[01:04:04] Speaker 00:
And that is wrong for textual,

[01:04:07] Speaker 00:
structural, historical reasons, and a host of practical ones, one of which I'll start with again to just amplify the point, it would mean that if a former president engages in assassination, selling pardons, these kinds of things, and then isn't impeached and convicted, there is no accountability.

[01:04:29] Speaker 00:
for that individual.

[01:04:30] Speaker 00:
And that is frightening.

[01:04:32] Speaker 00:
Now, to go back to some of the textual and historical and structural, my friend on the other side sort of suggests this is what the founders were talking about, and this is what they were worried about.

[01:04:41] Speaker 00:
I think that's entirely an inaccurate representation of the founding era history.

[01:04:46] Speaker 00:
There was basically no discussion of the impeachment judgment clause, which I take the defendant's principled textual arguments to be,

[01:04:54] Speaker 00:
What the impeachment judgment clause did was two things, as the district court described.

[01:04:58] Speaker 00:
It constrained the sanctions that Congress could place on an impeached and convicted officer, not only a president, any kind of officer, to removal or disqualification.

[01:05:11] Speaker 00:
And then it made clear that that impeachment did not

[01:05:14] Speaker 00:
imposed some sort of preclusive bar on subsequent criminal prosecution.

[01:05:19] Speaker 00:
You would think that if there was this kind of impeachment first requirement, impeachment and conviction first, you might actually find something somewhere in the sources, the framing, the convention in Philadelphia, the ratification discussions,

[01:05:34] Speaker 00:
early history.

[01:05:35] Speaker 00:
There was nothing of that.

[01:05:36] Speaker 00:
We've cited certain things in our brief from James Wilson, from Edmund Pendleton, from Representative Dana that say this, just a story.

[01:05:47] Speaker 00:
I don't hear the defendant to offer anything other than, well, Hamilton.

[01:05:50] Speaker 00:
All that Hamilton was describing was the undisputed point here that

[01:05:53] Speaker 00:
a sitting president can't be subject to criminal prosecution until that sitting president is no longer in office, whether the removal from office is through impeachment and conviction or simply the end of the term.

[01:06:06] Speaker 00:
Now, a structural point as well that I just want to quickly make, the district court made this, which is, if this rule were right, if the condescent precedent rule were correct, it would pose significant separation of powers problem of its own.

[01:06:19] Speaker 00:
It would basically mean that the executive branch would only be able to prosecute someone if Congress had acted.

[01:06:26] Speaker 00:
And there are all sorts of reasons why, of course, Congress won't act.

[01:06:30] Speaker 00:
For one, they've never believed that it was required, and also,

[01:06:35] Speaker 00:
In certain instances, they may decide that they don't have jurisdiction.

[01:06:40] Speaker 00:
Many of the members of Congress seem to hold that view with respect to the defendant's second impeachment.

[01:06:49] Speaker 06:
Thank you very much.

[01:07:01] Speaker 06:
Yes, go ahead.

[01:07:02] Speaker 06:
Thank you, Your Honor.

[01:07:02] Speaker 02:
And in my limited time remaining, I just want to make three points to the court in response to the opposing counsel's argument there.

[01:07:08] Speaker 02:
One is that the opposing counsel used the phrase above the law, saying that an immunity doctrine for criminal immunity would place the president above the law.

[01:07:15] Speaker 02:
I would just direct the court's attention to what the Supreme Court said at Nixon against Fitzgerald in the context of civil immunity.

[01:07:21] Speaker 02:
They describe the allegation that immunity sets the official above the law as, quote, rhetorically chilling but wholly unjustified.

[01:07:29] Speaker 02:
The US Constitution, the Separation of Powers, the Executive Vesting Clause, the Impeachment Judgment Clause, these are the foundational and fundamental law of our country and the President's immunity is determined on that.

[01:07:39] Speaker 02:
So that is more rhetoric than reality is what the Supreme Court said at Nixon against Fitzgerald.

[01:07:45] Speaker 02:
I'd also point out that when it comes to the question of whether or not the indictment alleges solely official acts, the indictment does not allege that President Trump did anything wrong after he left office.

[01:07:55] Speaker 02:
So it focuses solely on acts that he took while he was in office, and that's a telling indication that we're dealing with official acts here.

[01:08:02] Speaker 02:
And then, finally, I would address Judge Henderson's your question about the floodgates.

[01:08:07] Speaker 02:
And I tie that to what my opposing counsel said about a so-called frightening future.

[01:08:12] Speaker 02:
The frightening future that he alleges where presidents are very, very seldom if ever prosecuted because they have to be impeached.

[01:08:17] Speaker 02:
and convicted first is the one we've lived under for the last 235 years.

[01:08:21] Speaker 02:
That's not a frightening future.

[01:08:23] Speaker 02:
That's our republic.

[01:08:24] Speaker 02:
What he is forecasting is a situation where the floodgates will be open.

[01:08:28] Speaker 02:
We are in a situation where we have the prosecution of the chief political opponent who's winning in every poll.

[01:08:36] Speaker 02:
presidential election upcoming next year and is being prosecuted by the administration that he's seeking to replace.

[01:08:41] Speaker 02:
That is the frightening future that is tailor made to launch cycles of recrimination that will shake our republic for the future.

[01:08:47] Speaker 04:
If you have the impeachment judgment clauses, you indicate indicate impeachment, then conviction.

[01:08:54] Speaker 04:
But then the president either resigns is removed and then later on is prosecuted for a different crime.

[01:09:02] Speaker 04:
Can that happen or is there immunity there?

[01:09:05] Speaker 02:
Not sure I understand the hypothetical.

[01:09:07] Speaker 02:
Could you say it again?

[01:09:07] Speaker 04:
I apologize.

[01:09:08] Speaker 04:
Just indicating that if you're resting on that there must be impeachment and conviction, and it's for one set of crimes.

[01:09:15] Speaker 04:
But then later on, the president either moves is removed from office or resigns.

[01:09:21] Speaker 04:
And later on, there's a prosecution for something different.

[01:09:25] Speaker 04:
Is there immunity for that later crime?

[01:09:27] Speaker 02:
Yes, I think that's the better reason.

[01:09:28] Speaker 02:
Obviously it's not presented in this case because we have a close match between the conduct, the underlying conduct or transaction occurrence that's alleged in the articles of impeachment of which there was an acquittal, an acquittal, right?

[01:09:38] Speaker 02:
Which is the strongest case for double jeopardy and between the facts alleged in the indictment.

[01:09:42] Speaker 02:
But if there were like an unrelated prosecution.

[01:09:45] Speaker 04:
You just made a statement about he's only being prosecuted for crimes while in office.

[01:09:53] Speaker 04:
And so that's why I'm asking about leaving office and then thereafter I'm being prosecuted for something different.

[01:10:00] Speaker 02:
The plain text of the constitution, the best reading would be he has to be impeached and convicted for the thing that he subsequently prosecuted.

[01:10:07] Speaker 02:
So if he were impeached, convicted and removed from office and they charge him with another official act that was unrelated to the impeachment, I think that what Chief Justice Marshall says in Marbury would still govern.

[01:10:16] Speaker 02:
I think that's obviously it's not presented in this case.

[01:10:18] Speaker 02:
The court doesn't have to decide it, but that'd be my answer.

[01:10:21] Speaker 01:
So I just want to confirm.

[01:10:22] Speaker 01:
Your position is, if President Trump had been convicted after his impeachment trial on incitement of insurrection, if he'd been convicted, then this prosecution would be entirely proper.

[01:10:38] Speaker 02:
Which I would say that if you were impeached and convicted for the same and similar conduct, then that would authorize a subsequent prosecution.

[01:10:44] Speaker 01:
So we have many other issues with this prosecution.

[01:10:46] Speaker 01:
Is that a yes?

[01:10:47] Speaker 01:
Because I think you said in your brief that that impeachment

[01:10:51] Speaker 01:
for incitement of insurrection is based on the same or related conduct as that which is in the indictment.

[01:10:57] Speaker 01:
Yes, yes, yeah, I agree with that.

[01:10:59] Speaker 01:
So if he had been convicted by the Senate, then this prosecution would be entirely proper, correct?

[01:11:06] Speaker 02:
But not phrase it that way, because there's lots of other problems with this prosecution that we've raised in extensive place in the district court.

[01:11:12] Speaker 02:
He couldn't be prosecuted.

[01:11:13] Speaker 01:
Under the impeachment judgment clause, if he had been convicted by the Senate,

[01:11:20] Speaker 01:
when he was impeached for incitement of insurrection on same or related conduct as what's in the indictment, then this prosecution would be properly brought.

[01:11:30] Speaker 02:
This a prosecution could be properly brought.

[01:11:32] Speaker 02:
This prosecution, which has tons of other problems.

[01:11:35] Speaker 02:
I just want to be very clear about that.

[01:11:37] Speaker 02:
I'm making any confession that this prosecution is.

[01:11:39] Speaker 02:
All right, let me try one more time.

[01:11:41] Speaker 01:
Under your interpretation of the impeachment judgment clause, if President Trump had been convicted when he was previously

[01:11:49] Speaker 01:
impeached on same or related conduct as that which is in this indictment.

[01:11:55] Speaker 01:
The government could properly prosecute him for that same or related conduct.

[01:11:59] Speaker 01:
Yes or no?

[01:12:01] Speaker 02:
Potentially, provided they qualified with all kinds of other legal doctrines that are violated in this case.

[01:12:07] Speaker 01:
So I admit that a prosecution could be- I'm only asking you under your interpretation of the impeachment judgment clause,

[01:12:14] Speaker 01:
Is that proper?

[01:12:16] Speaker 01:
Is that allowed?

[01:12:17] Speaker 01:
I stand on my prior answer.

[01:12:18] Speaker 01:
I think we're agree.

[01:12:21] Speaker 01:
I understand there might be other reasons why you would challenge this prosecution.

[01:12:24] Speaker 01:
I'm saying based on your interpretation of the clause, this prosecution would be properly brought.

[01:12:30] Speaker 02:
If I would not say this prosecution, be very clear about that.

[01:12:34] Speaker 01:
But it's a prosecution based on same related conduct.

[01:12:38] Speaker 02:
this prosecution, which has many other issues related to it.

[01:12:40] Speaker 02:
What I would say is that the impeachment judgment judgment calls authorizes the prosecution of a president who's been impeached and convicted by the Senate, which President Trump is not.

[01:12:50] Speaker 01:
All right, we'll make it a hypothetical.

[01:12:52] Speaker 01:
Say a president was impeached and convicted on a charge of incitement of insurrection that is under the same allegations as a criminal indictment.

[01:13:02] Speaker 01:
He's convicted.

[01:13:03] Speaker 01:
Then the government could bring a prosecution for the same or related conduct, correct?

[01:13:08] Speaker 03:
Don't disagree with that.

[01:13:10] Speaker 01:
And then that means that the conducts that same or related, even if it's official, he could be prosecuted for it, correct?

[01:13:21] Speaker 01:
If you're convicted.

[01:13:22] Speaker 01:
Correct.

[01:13:23] Speaker 01:
OK, thank you.

[01:13:24] Speaker 04:
But my question goes to after the fact, and the reason I say that, even though you're challenging that these actions are only occurring while president, the district court's decision was that there is no presidential immunity from prosecution for official acts.

[01:13:39] Speaker 04:
It doesn't put a timeframe in there.

[01:13:41] Speaker 04:
And so that's why I'm going to beyond your investigation, your prosecution might not come until later.

[01:13:48] Speaker 04:
After the president has left office.

[01:13:50] Speaker 04:
So are you telling us that we are limited to a time frame and answering this question?

[01:13:55] Speaker 02:
I think the time frame is set forth by Chief Justice and personal legacy.

[01:13:58] Speaker 02:
It's Madison.

[01:13:59] Speaker 02:
He says never examined by the courts.

[01:14:01] Speaker 02:
So unless there is that.

[01:14:04] Speaker 02:
That one gatekeeping incident that has to occur, which is impeachment and conviction, the official acts, the court has no jurisdiction to review them under the separation of powers and the executive festing clause.

[01:14:14] Speaker 04:
But that also assumes that an impeachment proceeding occurred if there is not one, because we discussed earlier that not all officials go through that process.

[01:14:24] Speaker 04:
Absolutely.

[01:14:24] Speaker 04:
That's a judgment call as to whether that process would even be broad.

[01:14:28] Speaker 02:
I would say we have two arguments that reinforce each other.

[01:14:30] Speaker 02:
So if there's no impeachment ever and no conviction, then the official acts are immune, period.

[01:14:37] Speaker 02:
Further, the impeachment judgment clause incorporates a doctrine of double jeopardy that prohibits it, especially in the case of acquittal.

[01:14:45] Speaker 02:
So those are reinforcing doctrines that are set forth in the Constitution.

[01:14:50] Speaker 02:
If there are no further questions, we'd ask the court to reverse.

[01:14:53] Speaker 05:
Thank you.