Transcripts For CSPAN3 Judges 20240704

Attack. This is an hour. United states of america versus donald j. Tmp. [indiscernible] good morning. Before you get started can i just get a couple of things on the record. Our jurisdiction was challenged by an amica. I do want to speak to you more about jurisdiction, because we still have to say we have the jurisdiction. Sove though you belvehere is jurisdiction with respect to the collateral order doctrine, how do you place tt in line with the asphalt case which specifically says in a crimil case, your jurisdiction needs to stem from the constitution the explicit as well in statutory l . We have three responses. If you look at the language that Justice Scalia discussed, a situation where the right is one, the legal and practical value would be destroyed and these claims of absolute immunity falls within that discrimination explicitly stating that and dont have communication with ytng in the statute. Disagree. The doctrine ariseesro article 2 and section 1. It is enrced by the impeachment judgmentlae which refers to trial. Wallace facility is talking about a tuion where the right not to be tried is diinguishishing and is dismissal of an indicen we have the trial of any of the clauses in which the supreme has found ierlock can you tower jurisdiction. On the immugs midland asphalt n president ial the argument situations where the court said lo, ere is a speech and debate claimnd another claim that doesnt derive fm the constitution but closely akin in the double jeopardyri scenario you have twice put in jeopardy so you cannot be tried ain in that regard. In the speech and date says shall not be questioned, so the language was explicit but doesnt sayx plies italy. One is the plain language of impeachment clause. [indiscernible] impeachment and judgment clause. And this court expressly hel this is not magic a got to say right there in the context that this h a right to be tried. And explicitly the right not to tried. And the language that by midland asphalt is the situation where there is the appeal and legal and pctal value is destroyed. And there are similar language in cisneros. It has to be [indiscernible] im not awaref that. Digital equipment. I thi tt is an excellent point. And turning to thmets if i may, your hon, authorize the prosecution of a president for his official acts would open up a p doras box whichhis nation may never recover. Could george w. Bush be prosecuted for allegedly giving lse information to congress to induce the nation to go to war in iraq under false prese teensesou president obama for allegedly drone strikes targeting u. S. Citizens. Could can i explore the implic of what you are arguing . I understand your position that a president is immune from criminal prosecution from any official act that he takes a president , even if that ti is unlawful orncstitutional purpose, is that correct . If the president is convicted and impeached in a preeng that reflects widespread political consensus that would have plain language under the impeachment clause. So it seems to me therere lot of things that might not go through that process because it is quite a couple birr some rm ocess that has a lot of different people involved. So in your view, could a president self pardonr sell military secrets . Those are official acts, official act to communicate with a Foreign Government and such a president would not be subject to criminal prosecution . He sale of pardons because there are with examples when it comes to president clinton pardoning of mark rich. [indiscernible] whether or not a president can be prosecuted and he cant be prosut for that . As long as it is an official t. Private conduct in clint v jones could aresident Order Seal Team 6o assassinate a politicaril . He would have to be and be impeached and convicted. There would be no criminal prosution and no criminal liability for that . Chief jtices opinion and the plainanguage of the impeachment judgment clause presuppose what the founders i asked you a yes or no queson could a president who ordered seal team 6 to asssate a political rival could he be subject to criminal . If hwere impeached and convicted. My answer is a qualified yes. A political process has to would require impeachment and conviction by the senate. In these exceptional cases which the memo points out you would expect a sed impeachment and conviction. What the founders were concerned about was what James Madison in federal lift 47. They were more concerned with the abuse of political purposes to disable and that he is what we see in that cas i asked you a series of hypothetical of criminalctions taken by a president and could be considered official acts and asked you would such a president be subject to criminal prosecution . Anyo answer, yes or no is no . I said qualiedes if he convicted and impeached. You are sina president could selfpardon sell military secrets and seal team 6 to assassin a political rival . It may sail of pardons your brief says communicating with executive Branch Agencies and cmunicating with Foreign Government is anfficial act. [iisrnible] because under the procedure that you concede he can be prosecuted if there is an impeachment and conviction by the senate. [indiscernible] you are cceding that the president can be criminally prosecut uer certain circumstances. If they are impeached and convicted. Isnt that also a concsi that a president can be criminally prosecuted for an official act because a president can be impeached for an official act. Unique circumstances. Ou are conceding that president ca be criminally prosecuted, doesnt that narrow the issue before us to can a president be impeached im sorry, can a prede be prosecuted without fir being impeached and convicted . All your arguments fall away, yourepation of powers fall away and policy arguments fall away if you concede that a president can be criminally prosecuted under certain circstces . Article 2, section 1 has interpreted [indiscernible] article 3, lack of jurisdiction in examination of the president s official acts. Can do so if he is impeached and convicted. There is exception to that principle in the impeachment clse. The constitution gives you other and framersermost concerned that t president ouldnt be impehe what they were concerned was politically motivated but they didnt say e president can never be prosecuted. They created a narrow exception. Ould you concede there i not absolute immunity tt the judiciary can hear criminal prosecution under any circumstances, you are saying on specific circumstance does that mean there is absolute immunity . The constitution sets ua strong principle and very narw exception and. It seems to me at once you concede that presintcan be prosecuted under some circumstances, your separation ofowers argument falls away an the issues before us are narrowedo e you correct in your interpretation of the pehment judgment clause. Does the impeame judgment clause actually say what you say it does. I respectfully and strong principle in marbury versus madison, you cant sit in judgment because he can do it enever we want to. He said they are never examined by the courts. That is asking the larger question whether there is larger immunity for criminal prosecution for official acts or lookg on a motion to dismiss whh says look to the allegations and take those as truendhether or not we should be looking at official acts. When people were not preced, not everybody goes through a impeachnt proceeding before they get prosecuted. Only subordinate officer and points out very clearly, the frame i the constitutionalonntion clearly contemplated that would be mandatory. He would have to be impeached d convicted. Deals with bribery, treason and high crimes and miemeanor. And high crimes and misdemeanors basiclyover anything that the u. S. Senate makes a political judgment and justifiesrom removing him from office. Does not make political judgments to a charge. I think it has no basis. Where the current incumbent of presidency and number one political opponent. What the impeachment judgment clause is designed to do and limi itself to certain acts and then thereof and impeached and convicted thereafter could be a osecution. But not everybody goes through that proce. But not everybody has go through tt process. Precors later onan come into information and evidenc after they investigated to make determinatnsbout what they would like to prosecute. They are not confined to the impeachment judgment cus [indiscernible] you have repeated in nixon rs fitzgerald and reaffirmed tmp about the unique nature of that office. And there is a dea cut under president nixon where there is pardon given, there ian assumption that you could be prosecuted because why enter into those particular acts. Those are purely. Clinton versus jones that president clintonad admitted for notei that was private conduct. The president isnt immune for private conduct but for official acts. And pardon of president nixon. President nixon was accusedf wide range of private conduct and finpotential indictment. That ipuly private conduct. Wh we go to thendictment they are they are alleging this is private conduct not official acts. Why dot u speak to that because we have to look to the oader question and as well as the indictment [indiscernible] and return to the alleged motive or purpose. An alleging purely private ndt and engaged for particular purposes and that is a strong line of Supreme Court this circuit distinguished of how you are committing the acts. It strongly reenforces. And in back to marbury versu madison the nature of the act itself. And its an objective. And use the word objective context. It does not turn on the purpose or motive. And this court properly rejected and bradley against fisher and spalding and it is the stngest [. [indiscernible] well give u what you need, with respecto e actual indictment, it does n gss over and put it in terms of what you are describing. And what has gone through a grand jury process unlike the impeachment judgment au, how do we look at those particular acts. Clear gdae in nixon against fzgald. President nixon terminated a whistleblower d came into court and said this is not subject to immunity and the cot id we are not looking at that level of deta and the alleged motive f tse acts and said the specificity is conducting t business. Similar here, if you look at the indictment, five classes of coucwhich is alleged which was official conduct meeting with the u. S. Department of justice who should be the officer. You said many of which. All of which. One exception because there is speech and. [iisrnible] and President Trumps tet the son circuit held that it wasn official channel of Government Communication and under the objective all that speechs obviously. And meetings with the deparen of justice. And that was in t heartland of article 2, section 3 to communicate withgress. Let me ask you [indiscernible] ion believe you were unsel then but what about the confessions in the fst impeachment proceeding that impeachment should be [indiscernible] when he would be subject. Trump against vance and criminal subpoena fo tax records that predated ums time in office and concession that he could bsubject to prosecution. As for the ieachment brief that they cited in their brief, they said we have a judicial process in this country, peod we have an investigative that officer is immeund. And its that there is a quote in the congressional record in which your client said through counsel, no former Office Holder is immune from prosecuti. Investigation. Well, that may be true subordinate officers but the president , he is immune unless he ismpched and convicted. Heas president at the time that no former Office Holder is immune and the argument was there is no need to vote for impeachment becausee ve this backstop which is criminal prosecution and seems that many senatorseld on that voting to acquit. [iiscernible] what motivat senators votes. [indiscernible] tookhe position or your client did during the impeachment proceeding that there ulbe an option for imal prosecution later and its in the congressional record and what has changed owhdid you change your position . I bieve there was a distinction and t investigative process that was thquote i just read. Whatever concession that may have been made would not have raised resjudicata. It is consistent with the notn that defense including president ial iunity including separation of powers, couldnt be raised. There couldnt be a criminal ocess and defenses could be raised is pretty straightforward. There is no such thing as no concession in osproceedings what the District Court did in this case that no president s criminally immune from criminal prosecutio i dont think it is there in the congnal record. Let me go back and you isolated that one sentence. Isnt it true that marbury versus madon has distinguished between discretionary official acts andinterial which they mean imposed by l and its the latter one iwhich he can be held liable . And i want you i want you to address u. S. V johnson and the commonwealth of virginia. Thfirst one deals with the speech and debate clause. The Supreme Court said in essence, all of the evidence dealing with the speech and debate he can still be prosecuted, that is that ngressman, or i think it was conspiracy to defra, d then in the commonwealthf virginia you hadhe judge who had in charge with a crime under which yocould not discriminate in picking juries based on rape. My reading of that case is that the lanagthat you isolate in your rlyrief that it could just as easily be de, that is the choosing of the jury, a ministerl act by someone on the street. To me thatea when you have a duty that is imposed by law, picking a jury theyaiwas ministerial impose by l, whether youre the man on the street, the president ,hether in that case you are the judge you can be held criminally bel. And thats how i read, if not marbury, the progeny tt is you cant stop an fial act. You have to say was it scretionary official act or ministerial. Mr. Sauer i agree with tt characterization. I think the distinction is present in marbury. What i wou respond that extension has never been extended to the president , for good reason. For over 200 years t crt held that we cant sit in judgment over the president s official acts under any circumstances. We dont have any mr. Sauer its never arisen until this case. If you look at every civil context, what they said what je sus teus marshall is is never examable. There would be no judicial proceeding where you can say the president did this and well sit in judgmt rectly over that. Thats reinforced by sssippi against swanson. Where the courtsolwe cant even enjoin or declare a judgntor the president in official acts. The difference between ministerial and discretionary has been held totally wit respect to subordinate officers. That goes back t marbury. If you look at the indictment in this case, nhi alleged against President Trump ul be described as ministerial. I dont know where the goveme argued that if you are tki about responding to widespread allegations of fraud, abuse, and misfeesance in a president ial election, trying to find out how to respond it to that. Matters that have nature not ministerial. Even if that distinio goes all the way up, it wouldnt save the indictment here. Why isnt it ministeri . His cstutional duty to take care that the laws be fthfully executed requires him to follow those laws, every one of them . Mr. Sar would say that the take care laws, carrying out ons duties in take care laws are discretionary hes administerial act in marbury is delivering a seal when requested. There is a separate statute what they emphasize, the kans city had these two the secretary of stead these two hats on. On the other hand, the original statute had imposed these ministerial duties that had to do with record keeping. Yo got a land deed thats got a sealn. There is no discretion at all. When you are talking about the keare clause, there is no atute that could impose on the president a mandatory the notion that when the president s meing with the department of justice, we should investigate and enforce federal fraud statutes, thats ministerial strikes me as insupportab. Ihi youre missing what im ain judge henderson think its paradoxical to say that his constitutional duty to take care th the laws be faithfully execed allows him to violate criminal laws. We are at the motion tdismiss stage. The government has chargedhe specific criminal laws. We have to assume they are true. Mr. Sauer my response would b to emphasize what chief justice said marshall saidn marbury. Judge henderson i thought you agreed with me we have gotten beyond marbury in the sense that official as has been subdivided into dcretionary and duty bound or ministerial. And in the ministerial or duty bound, at least with respect to legislative even legislators and judges, they have been criminally held criminally libel. Thats in the face, at least with respect to the leglars, of an explicit constitutiona privilege. Mr. Sauer ex rtvirginia expressing on the ministerial distinction. What johnson says is it doesnt say, hey, whenou were doing these other things they were ministerial. These were not legislative acts. It draws a distinction between legislative and nonlegislative acts. Also i think thats the right reading of the ex part virginia. They go to say judicial t. The argument that pick ago jury i dont believe they use the word to my recollection ministerial. Judge henderson they were criminal as. Pick ago jury based on base is criminal act. Whatever johns d, i think it was the very same statute fraud against the United States, that is before us today. Mr. Sauer the distinction in those cases ibeeen in the judicial case, jns legislative s between legislative acts and nonlegislative acts. The distinction in ex parte virginia is between judicial ac and nonjudicial acts. That phrase is used. Here its president ial acts and nonpresident ial acts. And everything in the indictment is a president ial act. May i. There are aumber of precedents or cases in which the Supreme Court has reviewed actions by the president the case of youngstown, where the Supreme Court reviewed hair are you trumans seizure of the steel mills during the korn war. Theres the case of little bahrain, where chief Justice Marshall reviewed thections of president adams when he seized certain vessels. Trump vs hawaii was President Trumps order restrictingnt of the United States of nationals from certain foreign unies. Judge pan how does that square with your position that the judiciary can never review executive action . Mr. Sauer all those cases fall scarilyithin the establishment of ex parte young where the dial can issue judgments against subordinate officers judge pan these are psints. Harry truman was the president when he seizethsteel mill. How does that comportityour theory . Mr. Sauer itasn injunction against the secretary. E court has no jurisdiction to do that. It cannot enter strongly incas that the court cant judge pan review president ial action if on paper they dict their judgment to a subordinate officer. Is that what youre saying . These are president ial actions. Mr. Sauer the court can enjoy thacons of subordinate officers that violate the constitution. Ex parte judge pan im asking you a different question. These are psintial decision, president ial actions. Youre saying that the court c review president ial actions as long as when theyss the judgment they issue it to subordinate. Mr. Sauer directly sit in judgment. Its official. Its been established for over two yrs. Youre using theeachment judgment clause as a negative implications with respect to the civilian officer or president , of course, has to be impeached and convicted and nevertheless thereafter. Judge childs if the an acquittal, how are you using it in that rerd sometimes particularly in this case the acquial can arise from lack of jurisdiction, not actually trying the merits of the case. Mr. Sauer the judgment clause does distinguisheten these who are maia related officials the same thing comes up in criminal prosecutions where a dermination that the defendant is acquitted does not necessarily reflectn tual determination that they are not factually guiy. This is emphasized the in the o. L. C. Kwrepl membero they addressed that tkefrplgser determinatioofn reflects things distinct from the merits. Thatoet undermine the double jeopardy of t impeach judgment clause. Dge childs jack smith is improperly appointed. Do you have a position tre . Mr. Sauer aerasive brief. We have not raised it in this case. Itaces very power phil questions. We havent raised it at this time. The effect of if we say we n determine if these acts are officia or pva, i want to stay away from that, im going to y ministerial or discretionary. Judgeenderson and it was charactezein terms of office seer versus Office Holder, what is your position about would we have to remand it to the district judge tdede in the first instance wth these various the four pnts that the defense has made against imposing criminal liability hinge on whether the acts are ministerial, discretionary, official, private, or however you want to characrize it. Mr. Sauer i use the phrase inn Vice President pence jones, purely private conduct is what can be bjt to judicial process afr a president leaves office. In response to your question, our principalosition you can look at this indictment it allegation official acts and it be disss. We acknowledge the District Court didnt reach that issue. The court has the discrioto remand to the District Court for the application of the doctre of criminal immunity in the first instance. We admit that would be natural. If the court holds that there is president ial immunity, which it shou, remand to the District Court toay go through the indictment and or else hold factuafiings to decide how it applies the conduct alleg in this case. The court has the discretion to do that. That would be natural course. If there are no further questions. I have one more question. Judge pan under the fmework established, discussed in nixon versus fitzgerald, we are supposed to conduct a balancing test where we balance the neal for the asserted immunity versus other public interests. I see you as trying to represent a need for the executi to have this immunity tfalitate executive functions. The ability to act without hesitation. To be fearless. To make decisionmaking decionwithout being inhibited by fear of criminal prosecution. It seems to me there are some other article 2 interests here that are counter vaili. For example, under t article 2 there is an executive investing cuse. There is an interest of the executive branch as an institution to have constitutional executive power vest in a newly elected esident. Theres also an exeti interest as an institution i Law Enforcement and enforcing criminal laws. So it seems to me if we are weighing executive interests versus public interests, public interests in things likth integrity of an election, that President Trumps position is not fully aligned with the institutional interests of executive branch and in this balancing test that weakens the executive power that hes trying to assert. Mr. Sauer three things in response. Nixon ceresident pence fits gerald emphasizes the most compelling situation how is the considatns were rooted in e separation of powers is the rendering of the executi branch official unduecaious in the exercise ofdl controversial decisionha is come up all the time f a president has to look over her shoulder or hishoulder every time he makea controversial decision, after i leaving office if i go to jail my political opponents take power that dampens the ability of the esent. Judge pan i understand thats your position. At about other article 2 interests. Thats one intes there are other article 2 interests in play he,oo, they seem to be cntervailing. The interest i executive vesting. The interest in Law Enforcement. Those are so executive branch interests. And how should that affect the analysis . Mrsar to the effect of court balance, go back to marbury versu madison. To the extent the crteaching the balance of the considerations outweighed by e sortf public chattering coequences of subjecting our chief executives in an endless cycle of prosecution once they leaf office. E founders were very much against that. They were deeply concerned in that. You see that in hamiltons itgs in federal 65, 67. And madison is interested in federalist 47. Thats the original meaning of the conion. Do youhink it occurred to me. You think we should take any cog any stkapbs of the fact when ey wrote cog any stkapbs of the ct when they wrote that George Washington was the president. Judge hendersonstng executive. Congress was brand new. Evything else was brandew things have balanced out. We have a strong congress. Weav a strong judiciary. And weava strong president. Mr. Sauer f you look at the writings othfounders they were looking past the presidency of George Washington an iconic figure. Looking past the president of George Washington to future esencies. They correctly anticipated the nation mht they were deeply concerned abo t nation would devolve into ftis. Immediatelyhen you get to adams and jefferson they devolve into factions. They looked past that presidency to the future of the republic. A tradition that served for 234 years until last year when it was atred by the indictment of President Trump. If the court has no furth questions i would ask the court to reverse. If the court rules againsts any respect, we request the court stay its mandate to allow us to seek further review. Thank you, your honor. Judge childs mr. Pearce. May it please the court. Never in our nations history has a president claimed iy from criminal consideration extends beyond his time in office. The president has a unique constitutional role. He is not above the law. Separation of powers principles, constitutional text, history precedent, and other immunity doctrines all point to the lusion that a former president enjoys no immun from criminal prosecution. At a minimum,case in which the defend is alleged to h conspired to overturn the resu aresidential election, is not the place to recognize some novel form of criminal immunity. I want to start with jurisdiction as judge childs raised. S our view that the court has and should enteroth claims before it. With respecte immunity claim, i this courts decision in cisnerosyears after midland adds fault did allude to a type of separation of pewers powers claim involving president ial ty, i think judge henderson pointed out the supreme cou ielf has acknowledged that this idea of an explicit guarantee is more of a suggestion than some sort of statutory prescription. Theres been ns since then that have actually used that word suggestion to follow up on that line of thinking. Mr. Pearce within the supr court, i dont believe there have been cases, but cert this court in cisneros as well cases post midland asphalt like rostenkowski, and tkuren rger have recognized this type aration of powers claim when you are talking about immunity i something for which alateral order Appellate Jurisdiction is available. Here are also other circuits. I thint, second, and 10 that keep following that line of ng with respect to midland asphalt it requires an explicit constitutional or statutory language that case sa eus you cannot tried. Mr. Peawo responses. In cases likeros this court has spoken otherwise. I think the only onehere is the first circuits decision joseph where it was the case of a judge seek ago criminal raise seeking a criminal immunity defense to a criminal prosecution. Both rostenkowski and duren burger it didnt acknowledge. The court there talked about claiborne hastings which are ninth circuit and 11th circuit cases. Judge easterbrooks shock opinion noted when it deals with a personal immuni like that its different than the transactional imimmunities considered in thed circuit cases. Of a small point of common defendant, we do think with respect to jurisdiction there is a little of a different inquiry withesct to a president. We dont think that carries over to the merits in the l i think the United States versus nixon is the perfect examp that. There the court said it would be unseemly to hold the president uire president to go into contempt, nonss reaching the merits rejected president nixons abs executive privilege claim. And required that you dont see a distinction on the civil versus criminal context. Mr. Pearce i dont. Rose s much here when talking about civi encrime and criminal with respect to speech and deb we strongly disagree that it should beed here for many of the reasons that judge pan set out w respect to the immunity, given the language in rose, that would supply basis for this court to entertain the immunity claim. Why arent you taking the position we should dismiss this al because its rlocutory, doesnt that advance your interests . Mr. Pearce our its are twofold. United states versus nix, s and to movemptly to satisfy and vindicate the publics and defendants interests in a prompt resolution of this trial. But doing justice means getting the law right. Its our view that even if a dismissal on jurisdiction might move this case faster, thats hard to know, we shus skwr dont think thats the right aak thats the right analysis. We have a line of cases, including cramer vs. Gates and American Hospital association assume hypothetical statutory merits of a case. Reach the jurisdiction being continues teupbgt fr eugle 3 we could never assume. Th implicates the power of the court to act. If we had discretion to reach the merits versus just dismissing this case und midland asphalt, which is a strong precedent, which suggests that this appeal is interlocutory, and it do fall under the collateral order doctrine, how should we determine how to ee that jurisdiction about whether or not we should reach the merits . Mr. Pearce i think in the American Hospital decision, the 2020 decision, the court said the formulation was Something Like we are doubtful as t our invoking the line of cases you just describedto decide the merits. We w urge the court to do the same here. With respect to thens doubts jurisdiction. Yes, hypotheticaltatutory jurisdiction is available under law of the circuit. The court should use that to reach th merits. Judge childs doesnt that lead to a hypothetical decision . Mr. Pearce no. Judge childs the Supreme Court said that. Pearce the steelco is the leading Supreme Court decision. Some courts including this court, has devised a hypothetical statutory jurisdiction doctrine. If this court were to dismiss for lack of jurisdictd then say, nonetheless as an alternative holding herw we would come out on the merits, that i think would be im. Understand the american oversight to be suggesting on page 20 of its previous. Piece to allow the court to say this is hard. There might be arguments on both sides. We think that there is we assume hypothetical statutory juries d. , we move forward. Jurisdiction. We move order. Let me ask you about marbury. Whats your interpretation of its progenhe case itself . Mr. Pearce our interpretation is much closer in line with what i think i heard judge setting out. Simi yours. It certainly does not ecorrect an unreviewable power for the presiden the pxample that have is a the youngstown case. That was is president truman closin steel mills. The court coming in and reviewing that. Ee that all the way through to the preside its hard to see any world in which the just says, we cantervene here. We do see i accept the courts, judge henderson, the and discretionary acts. Isterial compliance with the law is not some sor discretionary call. It is something that i fully endorse or agree witidea of the paradox of a pres on the one hand having article 2 take care of the responsibility. On the other hand, seeing the laws as compliance with the law as optional. Judge henderson how do we write an o that would stop the floodgates . Ur predecessors in their o. L. C. Opinicognize that criminal liability would unavoidably political. Mr. Pearce a couple of responses. For one, o course, that was with respect to a sitting ident. The analysis is extraorly different with respect to a former president. Which o. L. C. In that very judge henderson with respect to being necessarily political. Mr. Pearce think there is a political procich is impeachment, we can talk about but there is a Legal Process which is decidedly n political. That is a process which has the kinds of safeguards t couple of members of the court here have already referred to we are talking about prose who follow strict codes. And presumed to act with irregularity. Grand jurors. And this court of standing article 3 Court Standing above t i want to pushback a little bit agnsthis idea of floodgate. At least since the watergate era, 50 years ago, has there been widespread societal recognition, including by president s and the executive branch, that a former pnt is subject to criminal nixon was not about private conduct. Nixon was about, among other things, using the c. I. A. To interfere with a f. B. I. Investigation. He accepts a pardon derstanding that after having resi i think that undermines this impeachment t argument. Series of independent anda special prosecutors investigating a range of different ty conduct. You saw independents p ep counsel Lawrence Walsh in the iranconfair. The department invokes in his reply in chapter 27 of that report, the independent counsel assumes that president an was subject to prosecution. There evidentiary. Idnt get not t sthaut there was immune hought there was immunity. Thats continued to present. This notion we are going to see a floodgate l investigations and the in the clinton era didnt ren any charges. The fact that this investigation did doesnt reflect that we a going to see a sea change of vindictive tit for tat prosecut in the future. I think it reflects the fundamentally unprecedented nature of the criminages here. Never before has there bee allegations that a sitting president has, thrivate individuals and using the levers ofer, sought to fundamentally subvert the democraticepublic and the electoraem. Frankly, if that fact pattern arises again, it would be awfully scary if thrent some sort of mechanism by which to reach that criminally. In your brief you raised some sort of lesser immunity. Want to speak to that . Mr. Pearce i we dont think that comes into play here. I think the point was in some sort of challenging cases, it might be that where a presis operating under rdinary time pressure has to make a very difficult, national securpe of decision. Go and commit this these circumstances . Ke under a president will often have a of lawyers to advise him or her. The lawyers say, madam in two months. Ll get you a memo thats not going to be enough in that situation. If there were a drone strike, civilians were killed, tha theyre wretically could be subject to some etically could be subject to some court of prosecution as murder. That might be a place which the courd properly recognize some kind of immunity. Ats nothing like what we have he i take the former offic brief discussing the vesting clause to talk the nature of again, subverting the electoral process. At a minimum there should be no type of immunity that covers that. Judge pan are you saying it should be a case by case ncing in each case . How does this work as a Legal Standard . Mr. Pearce we think it should just be as the distrbgt court held, finding is a balancing under fitzgerald. Thats our view. Start with this question. What are the burdens against t presidency and what are the interests to the further the answer to that question under fitzgera think the burdens my friend talks about on the r side are overstated. Im happy to describe we think the interests s interest in an ongoing should be an congressional ad that a former president i subject to a criminal prosec what im dcribing in response to j childs questions, in a particular might there be some extraordinary circumstance where ident, a former president could invoke an im . Maybe. I dont think the court has to reach that there. Ink the court could write an inion that says based on the nay taoufrt allegationstake as true, there is no reason to reco that i dont think it needs to be a casey case analysis. I the court can reserve that question to the extent it gives one pause about a president in future situations can you answer the question i posed earlier to your oppos counsel about are we to look at the broader qn that was dealt with by the judge w respect to president ial immunity,olute immunity for no criminal prosecution of official arsus looking at this indictment and accepting as true the allegations brought there or both . Mr. Pearce we have a strong erence the court adopts the former. He distrbgt court did which is to say based on questions of separation of p of constitutional text, history, precedent is there immunity for a former president . We think the answer to that is no for all the reasons we put in the brief. Im happy to address here. Ca, i think if the court gets to that second question, there are hard qus about the nature of official acts. As i think j pans hypothetical describ what kind of world areving in if, as i understoodiend on the other side to say here, a president ers his seal team to assas aolitical rival and resigns before an impeac not a criminal act. President sells a pardon, signs, or not impeached, not a crime. I that is extraordinarily ightening future. That is the kind we are talking about acing and weighing of the interests, i think that should way extraordinarily heavily in the courts consideration. Judge childs let me ask you. How does it either judge henderson how does it mr. Pearce it formally has no apication at all because very early on if the opinion the court says we are not d with any questions about immunity in the criminal context. I tend to agree with my friend on the otheride in many respects it does reinforce the nature of the fitzgerald civil oute perimeter standard. It says you dont look at intent context plays a more Important Role than thent of communications. I think the signifihange is the acknowledgement of looking at a president whether that president acting in his or her r Office Seeker or Office Holder. Again, to go back to my response to judge childs question, may certain things are or are not official acts in t iictment, we just think thats the wrong paradigm to use. We think that would be inconsistent with fitzgeralds also just irreconcilable with nature criminal law works. Toe are not going to take into account the motive or intent, there are plenty of acts every day. For example, if i were to encourage someone not to testify trial because i wanted to go on a hike with trson. Not a crime. If i encourage someone not to go on a hike because their testimony encourage them to skip their trial testimony because their testimony was going incriminate me. The same underlyingct. When you map that on to the president ial context you come up with some of the frighteni hypotheticals where as long as someth is plausibly official, even if it involves assassinating a prominent critic or business rival, thld seem to then be exempt, potentially, fiminal prosecution. We wouldnt conced that if thats the world we need to live in. I think we would advance plenty ofrguments below. But those arguments themselves would create satellite litigation, an additieason not to go down the route. Judge childs thinking about your answer about potentially not looking at motive and intefpbt, when there is a criminal prosecution, that mens ray and intent is part of the statuterge. Mr. Pearce precisely. Thats why it wouldnte sense to come in and use this non as i understand how fitzgerald outer perimeter standard would work, it can say ostypes of official acts, offi conduct, in a is something from which the 3rez is immune president is immune. You dont get to thond question of, well, did that person act with mens rea . At least under a theory where its available at trial, then there is no wayreach that conduct. Judge childs when we are to judge hendersons question,ck me of the acts are same or similar. Ane was direct discussion of it in that opinion as determining whether it was Office Seeker ve Office Holder. Mr. Pearce if this courtr that . Decides the case thehe District Court did, iont think it has any role to play at all. There is no question of whether was this act official, or these ts of allegations official. The question based on a fitzgerald analysis, history, quantum of immunity for a former president . We the answer to that question is no. There is no reason as the District Court also found to turn to indictment and consider this outer perimeter, civil outer perimeter. Judge henderson how about mr. Pearce if you dont there are a lot of differe ways this court could not decide it that way. I think to p on my response to judgehilds, we certainly stand behind our view in the briefhat some substantial number of tions would fall outside of an outer perimeter. That i think is enough to i think either party are urging the court at that po send the case back to the District Court. K that would create a series of challenging qns that i mentioned earlier. What are the eiary theories under whit evidence could potentially come in . It would be our strong view, if the court followed that route, which we urge the court not to, toit clear immunity is an off, off switc this is the immunity appeal. If the court says we affe send it back, there is no immunity, then otherngs become evidentiary questions or which any appeal is then anons, appeal from the final judgme if any final judgment. Judge child the immunity e is never lost . Mr. Pearce i dont think its munity at that point. What i just described, there is no immunity. There may be some types of o challenges as evident comes in at trial. I think that 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. Judge pan since President Trump concedes that a president can be criminally prosecuder some circumstances, hes that that is true only if he is first impeached and convicted by congress, do yougree that this appeal largels down to whether hes correct in his interpretation of the impeach interpretation of the pao eu ment judgment clause . If hes c includes this peachment first rule, then he wins. If hes wrong, if nk the impeachment judgment clause does not contain an impeachment first rule, then he loses. Right. Arce i think thats the defendants theory over the course of this litigaas evolved. Now before turt i understand the argum be principally the principal submission to be as you just described. What we call in ief the that there is only liability, criminal liability for aormer president if t president has been impeached and convicted. Is wrong for textual, stal, historical reasons. And a host of practical ones. One of whll start with it would mean that if a ft. President engages in assassination, selling pardons, kinds of things and isnt impeached and convicted, there is no accountability for individual. That is frightening. To go to some of the textual and historic a and structural. My friend on her side suggests this is what the founders were talking about and worried a inaccurate representation of the founding era history. There is no discussion of the impeachment ju clause, which i take the defendants cipleled textual argument to be, what the impeachment judgment clause did was two th it constrained the sanctions that congress could place on an impaoefpd and convicteder, not overwhelm a president. Any kind of officer, toal or disqualification. T made clear that that impeachment did not have a bar on subsequent criminal prosecution. Was this kind of impeachmente requirement, and conviction first, you might ally find something somewhere in the source framing, convention in philadelphia, the ratification discussions early history. There is nothing of that. We cited certain things inur brief from james wilson, from edmond pendleton. Om representative dana that say this. Justice st i dont hear the defendant to offer ng other than hamilton. All hamilton was desc was the undisputed poin sitting president can subject. Until that sitting president is no lon office. Whether the removal in office is through ieoement and conviction or the the term. Structural p as well i want to quickly make. The distcourt made this. If this rule were right, that wot District Court made this. If this rule were that would put significant separation of powers m on its own. The executive branch would only be able to prosecute someone if congress had act there are all sorts of Reasons Congress act for one they never believed it was required. And also in certain instances they decide they dont have jurisd. Many of the members of congress seem to hold that view with respect to the defendants thank you very much. Mr. Sauer i want to make three pots to the court to the opposing counsels argumen one is he used the phrase above the law. Immunity doctrine forrinal immunity would place the presidt ove the law. I direct the courts attention to what the Supreme Court said in kwreubgson non against filled gerald. Immunity sets the official abov the law as, quote, rhetorically ilng but holy un wholly unjustified. Thempchment judgment clause, these are the foundation and fundamental law of our country. If the president s immunity is determined on that. That is more rhetoric than reality is wha the Supreme Court stayed in nixon against fitzgerald. When it comes to the request question, t iictment has official acts. It does notllege President Trump did anything wrong after he left office. It focuses solely on on what he took in office. We are dealing witofcial acts here. Then finally, i would address judge henderson your question about the flogas. I tie that to what my opposing counsel said about a socalled frightening future. The frightening future he allegations whereresidents are seldom if preced because they have toe impeached and convicted first. Thats 235 years. Thats n frightening, thats our republic. Whate forecasting is the ooates will open. We have the prosecution of the chief political opponent who i winning in every poll. Upcoming next year. And being propertied by the administration that s seeking to replace. That is the frightening future. That is taylor tailormade to shake our republic. Skwrulg khao euldz do you have the impeachment judgment clause indicate, impeachment, then conviction. But th psident either resigns, is removed, d en later on is prosecuted for a fferent crime. Can that happen . Is theremmity there . Mr. Sauer noturi understand the hypothetical. Judgehis if you are resting on there must be impeachment and conviction and for one set of cres, then later on the president either is removed from office or resigns, and later on there is a prosecution for sothing different, is there immunity for that later crime . Mr. Sauer yes, thats the better reason. Its not presented ith case. Because we have a closeatch. There was an acquittal. The strongest case for double jeopardy and the facts alleged in the indictment. Judge childs you just made a statement about hes only being prosecuted for crimes while in fice. Thats why im askinabt leaving office and then there after being prosecuted for something different. Mr. Sauer t point is the constitution. Best reading would be he has to be impeached and convicted for the thing he subsequently 3rrd. Hes impaoefptd and convicted and charge him with another official act, thats athief justice says in mbu would govern. Its not presented here. But that would be my awer. Judge pan your position is, if President Trump had been convicteafr his impeachment triaon inciting an insurrection, he was convicted, this prosecution would be entirely proper. Mr. Sauer i would say if he were impaoefd d convicted for the seupl and similar conduct, that would authorization judge pan is that a yes . I think you said in your brief that impeame for incite of insurrection is based on the same related conduct as that which is in the indictment. Mr. Sauer i agree. Dge pan if he had been convicted by theene, then this prosecution woulde entirely proper. Correct . Mr. Sauer i would not phrase it that way. There are lots of other problems we raised. Judge pan the impeachment judgment clause, if he had been convict by the setehen he was impaoefpd for incitement itch pa epd for in pehed for incitement ofnsrection, this prosecution would be properly brought. Mr. Sauer a prosecution. Thisrosecution has other problems. Just want to be clear about that. Think judge pan under your inrptation of the impeachment judgment clause. If President Trump had been nvted when he was previously impeached on same or related conduct as that which is in this indictment, the governme could prorbly properly prosecute him for that same or rated conduct. Yes or no . Mr. Sauer potentially, provided they qualifi with all other legal documents violated in this ca. Judge pan im asking you under ur interpretation of the impeachment judgmt clause, is that proper . Is that allowed . Mr. Sauer i stand on my prior answer. Judge pan indstand there might be other reasons. Im saying basedn your interpretation of the clause this prosecution would be properly broht mr. Sauer i would not say this prosecution. Very cle about that. Judgpa prosecution based on same or related conduct. Mr. Sauer this has other issues lad to t the impeachment judgment clause authorizes the prosecution of a president whos been impaoefpld and convicted by the senate judge pan say a president was impeached and convicted on a chge of incitement of insur correction that is under inrrection that sunned the same allegations as a criminal inctment. Hes convicted. Then the government coul bring a prosecution for the same or lad conduct, correct . Mr. Sauer i disagree. Dge pan then that means that the conduct,hasame or related, even ift official, he could be prosecuted for it, correct . Thank you. Judge childs my quesoes to after the fact. The reason i state that even though you are challenging these actions are occurringhile president , the District Courts decision was that there iso president ial immunity from prosecution for official act it doesnt put a tim frame in there. Thatshy im going to beyond your investigation, ur prosecution might not come until later. After the prede has left office. Are you telling us that we are limited to a time frame in answering this question . Mr. Sauer ihink the time frame is set forth by chief justicin madison where he says never. Unless there is that one incident that has to occur, which is impeachment and nviction, the official acts the court hano jurisdiction to review them under the separation of powers and the judge childs that assume an impeachment proceeding occurred. Ifhe is not one, we discussed earlier, not all fials go through that process. Thats a judgment calls to whether that process would be brout. Mr. Sauer we have two arguments. If there is no impehmt ever and no conviction, and the official acts are immune. Period. Further, the impeachment judgment clause incorporates a Doctrine Document of double jeopardy that prohibits it especially in the se of acquittal. Those are reinforcing doctrines set for the in the constitution set forth in the constitution. No further q