By an amica. I do want to speak to you more about jurisdiction, because we still have to say we have the jurisdicon so even though you believe there is jurisdiction with respect to the collateral orr doctrine, how do you pla that in li with the asphalt case which specificallyays in a criminal case, your jurisdiction nds to stem from the constitution or the explit as well in statutory law . We have three responses if you look at theanage that Justice Scalia discussed, a situation wherehe right is one, the legal and practical value would be destroyed and these claims of absut immunity falls within that discrimination explicitly stanghat and dont have communication wh anything in the statute. I disagree. E doctrine arisees from article 2 and section 1. It is reenforced by the impeachment judgment clause which rerto trial. Wallace facility is talking about a situation where the righ not to be ted is distinguishishing and is dismisl of an indictment. We have the tria of any of the clauses in which the supre has found interlock can y ter jurisdiction. On the imms midland asphalt not president ial the argument situations where the court said look, there is a spch and debate claim and another claim that doesnt derive from t constitution but closely akin in theouble jeopardy trial scenario you have twice put in jeopardyo you cannot be tried again in that regard. Inhe speech and debate says shall not be question, so the language was explit t doesnt say ex applies italy. One is the pinanguage of impeachment clause. [indiscernible] impeachment a jgment clause. And this court expressly held this is not magic and got to say right there in the context tha this has a right to be tried. And explicitly the rightoto be tried. And theanguage that by midland asphalt is the situation where there is the appeal and lega and practical value is destroyed. And there a silar language in cisneros. It has to be [indiscernible] im not aware of that. Digital equipment. I think that is an excellent point. And turning to the merits if i may, your honor, to authorize the prosecution of a president for his official acts would open up a pan doras bo which this nation may never recover. Could grgw. Bush be prosecuted f allegedlyiving false information to congress to induce the nation to go to war in iraq under false present teenses could president obama fo allegedly drone strikes targeting u. S. Citizens. Could can i explore t implications of what you are arguing . I understand your position that a president ismmune from criminal prosecution from any official act that he takes as presiden en if that action is unlawful or unconstitutional rpose, is that correct . If the psint is convicted and ieached in a proceeding that reflects widespread politil consensus that would have plain language under e impeachment clause. So it seems to me there are a lot of thgs that might not go through that process because it is quite a couple birr some rm process that has a lot of different people involved. So in your view, could a presenself pardon or sell military secrets . Those are officl acts, official act to communicate wit a Foreign Government and such a president would not be subject to criminal prosecution . The 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 pseted and he cante prosecuted forhat . As long as it is an official act. Private conduct in clinton v. Jones cld a president order seal am 6 to assassinate a political rival . He would have to be a be impeached and convicted. There would be no criminal prosecution and no criminal liability for that . Chief justices opinion and the plain language of the impeachment judgment clause presuppose what the founders i asked you a yes or no question. Could a president who ordered seal tm to assassinate a policarival could he be subject to criminal . If he were impeach a convicted. My answer is a qualified yes. A political processas to would require impeachment and conviction by theenate. In these exceptional cases which the memo points out you would expect a speedy impeachment a conviction. What t founders re concerned about was what James Madison in federal lift 47. Theyere more concerned with th abuse of political purposes to disable and that he is what we see in that case. I asked you series of hypothetical of criminal actions taken by psident and could be considered official as d i asked you would such a president be subject to criminal prosecution . And your answer, yes or no is no . I said qualified yes if he is coicd and impeached. You are saying a president could selfpardon sl military secrets and seal team 6 t assassin a political rival . It may sail of pardons your brief says communicating with executive bncagencies and communicating with Foreign Governments is an official act. [indiscernible] because under the ocure that you concede he can be prosecuted if there ian impeachment and conviction by the senate. [iiscernible] you are conceding that the president can be criminally prosecuted under certain circumstances. If they arempeached and convicted. Isnt tha also a concession that a president can be criminal psecuted for an official act because a president can be impeached for an official act. Unique circumstaes you are conceding that president can be criminally prosecuted, doesnt tt narrow the issue before u to can a president be impeached im sorry, can a president be proseced without first being impeached and convicted . All your arguntfall away, your separation of powers fal away and policy arguments fall away iyoconcede that a president can be criminally prosecuted under certain circumstances . Article 2, section 1 has interpreted [iisrnible] article 3, lack of jurisdiction inxamination of the president s offia acts. Cano so if he is impeached andoncted. There is exception to that prinplin the impeachment clause. The constitution gives you other and framers were most concern that the president wouldnte impeached, what they were concerned w politically motivated but they didntay the president can never be prosecuted. They created a narrow exceio would you concede there is not absolute immunity that the judiciary can hear criminal prosecution under a circumstances, you are sing one specific circumstance does that mean there is absolute immuni . The constitution sets up a stng principle and very narrow exception and. It seems to me that once you concede that president s can be prosecuted under some circumstances, your seraon of powers argument fallswa and the issues before us are narrowed to are you correct in your interpretation of the impeachment judgment clause. Does the impeachment judgment clause actually y what you say it does. I respectfully a strong principle inarry versus madison, you cantit in judgment becau he can do it whenever 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 actor looking on a motion to dmiss which says look to the allegations and take thoses true and whether or not we shoulde looking at official acts. When people were not prosecuted, not everybody goes through a impeachment proceeding fo they get prosecuted. Only subordinate officers. And points out very clearly, the framers in the Constitutional Convention clearly contemplated that would be mandatory. Would have to be ieaed and convicted. Deals with bribery, treason and high crimes and misdemeanor. And high crimes and misdemeanors basically cover anything that the u. S. Senate makes a political judgmen and justifies from reminhim from office. Oes not make political judgments a charge. I think it has no basis. Where the current incumbent of presidency and number one political opponent. What the impeachment judgment clse is designed to do d limit itself to ctain acts and then thereof and impeached and convicted theafter could be a prosecution. But not erody goes through that process. Bunoeverybody has to go through that pross prosecutors later on can come into infmaon and evidence after they investigated to make determinations about what they would like to prosecute. They are not confined to the impeachmt dgment clause. [indiscernible] you have repeated in non versus fitzgerald and reaffirmed in trump about the unique nature of that office. And there is a deal cut under president nixon wherehe is pardon given, there is an assumption that yocod be prosecuted because why enter into those particular acts. Thosere purely. Clinton versusones that president clinton had admitted for not being that wasrite conduct. The president isntmme for private conduct but for oicl acts. An pardon of president nixon. Esent nixon was accused of a wide range of private conduct and facing potential indime. That is purely private couct. When we go to the indictment they are th are alleging this is private conduct not official acts. Why dont you speak to that because we have to look to the broader question and as well as the indictmen ndiscernible] and return to the alleged motive o purse and alleging purelyrite conduct and engaged for particular purposesnd that is a strong line of Supreme Court this circuit distinguished of how you are commiing the acts. It strgl reenforces. And going back to marbury versus madison thnare of the act itself. And s an objective. And use the word objective context. It does not turonhe purpose or motive. And this court properly rejected. And bradley against fishernd spalding and it is the strongest [. [indiscernible] wll give you what you need, with respect to the actual inctnt, it does not gloss over and put it in terms of what you are dcribing. And what has gone through a grandury process unlike the impeachment judgment clause, how doe ok at those particular acts. Clear guidance in nixon against fitzgerald. Prident nixon terminated a whistleblower and came into court and said ts is not subject to immunity and the court said we are not looking at that level of detail and the alleged motive for these acts d id the specificity is conducting the business. Similar he, you look at the indictment, five classes of conduct which is alleged which s official conduct meeting with the u. S. Department of justice who should be the officer. You said many of whic all of which. One exception because there is speech and. [indiscernible] andredent trumps tweets, the second ciriteld that it was an officl annel of Government Communication a under the objective all that speech is obviously. D meetings with the department of justice. An that was in the heartland of article 2, section 3 to communicate with congress. Let me ask y [indiscernible] i dont believe you were counsel then but what about the confessions in the first impeachment proceedinth impeachment should b [indiscernible] when he would be subject. Trump against vance and criminal subpoena for tax cos that predated trumps time in office and concession that he could be subject to precution. As for the impeachment brief that they te in their brief, they said we he a judicial procesin this country, period. We have an investigative that no officer is immeund. And its that there is a que the congressional recor which your client said through counsel, no former Office Holder is immune from prosecution. Invtition. Well, that may be true suboine officers but the president , he is immune unless he is impeached and conct. He was president at the time that no former office hder is immune and the argument was there is no need to vote for impeachment because we have this backstop which is criminal prosecution and seems that many senators relied on that votg to acquit. [indiscernible] what motivated senators votes. [indiscernible] took the position or you client did during the impeachment proceeding tha there would be an optionor criminal prosecution later and its in the congressionalecord and what has changed or why did you chge your position . I believe there was a distinction and the investigative processhawas the quote i just read. Whatever concession that may have been made would not have raised resjudicata it is consistent with the notion that defense including president ial immunity including seration of powers, couldnt be raised. There couldnt be cminal process and defenses could be raised is pretty straightforward. There is nsu thing as no concession in those proceedings what the distrt court did in this case that no president is criminally immune from criminal prosecution. I dont think it is there in the congressional record. Let me go back and you isolat tt one sentence. Isnt it true that marbury versus madison has distinguished between discretna official acts and ministerial which they mean imposed by law and its the latter one in which he c be held liable . And i wt u i want you to address u. S. V. Johnson and the commonwealth of rgia. The first one deals with the speech and debate clause. ThSupreme Court said in essence, all of the evidence dealing with thepeh and debate he can still be prosecutedth is that congressman, or i think it was copicy to defraud, and then inhe commonwealth of virgia you had the judge who had in charge with a crime underhich you could not discriminate in picking juries based on rape. My reading of that case is that the language that you isolate in your reply brief that it could sts easily be done, that i the choosing of the jury, a ministerial act by someone on the street. To me that means when you have a duty that is imposed by law, picking a jury they said was misterial imposed by law, whether yrthe man on the street, the president , whether in that case you are the judge you can be heldrinally libel. And thats how read, if not marbury, the progeny that is you cant stop an official act. You have to say was it discretionary official act or ministerial. Mr. Sauer i agree with that characterization. I think the distinction is presenin marbury. What i would respond that extension has never been extended tthe president , for good reason. For over 200 years the court 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 saihat jeff sus teus marshall i is never exab. There would be no judicial proceeding where you can say the prident did this and well sit in judgment directly over that. Thats reinforced by mississippi ait swanson. Where the cots hold we cant even enjoin or declare a judgment for the president in official acts. The difference between ministerial and discretionary ha been held totally with respect to subordinate officers. That goes back to marbury. Ifou look at the indictment in this case, nothing alleged agait esident trump could be described as ministerial. I dont know wherehe government argued that if you are talking about responding to wispread allegations of fraud, use, and misfeesance in a president ial election, tryg to find out how to respond it to that. Matters that have nature not ministerial. Even if that distinction goes all the way up, it wouldnt save the indictment here. Why isnt it ministerial . His constitutional duty to take care that thla be faithfully executed requirehi to follow those laws, every o of them . Mr. Sauer i would say that the take care laws, carrying o ones duties in take care laws are discretionary. Hes administerial act in marbury iselering a seal when requested. Er is a separate statute what they emphasize, the kansas city had these two the secretary of state had these two ha on. On the other hd,he original statute had imposed tse ministerial dutiesha had to do with recordeeng. You got a land deed thats got a seal on it. There is no discretion at all. When you are talking about the take care clause, there is no statute that could impose on the president a mandatory the notion that when the psints meeting with the department of justic we should investigate and enforce federal fraud statutes, thatsinisterial strikes me as insupportable. I think youre missing what m asking. Jue henderson i thinkt paradoxical to say that his constitutional duty toakcare that the laws be faithfully executed allows him to violate criminal laws. We aret the motion to dismiss stage. Thgovernment has charged the specific criminal laws. We have to assume they are true. Mr. Sauer y sponse would be to emphasize what chief justice said marshall said in marbury. Judge henderson i thought you reed with me we have gotten bendarbury in the sense that official acts has been subdivided into discretionary and duty bound or ministerial. And in the minisri or duty bound, at least withesct to legislative even legislators and judges, they have been criminally he criminally libel. Thats in the face, at least with respect to the legislators, of an explicit constitutional privilege. Mr. Sauer ex parte virginia exessing on the ministerial distinction. What johnson ss it doesnt say, hey, when you were doing these other this ey were ministerial. Ese were not legislativects. It draws a distinction between legislativend nonlegislative acts. So i think thats the right reading of the ex parte virginia. They go on to say judicial act. The arme that pick ago jury i dont believe they use the word to my recollection ministerial. Judge henderson they were criminal acts. Pick ago jury based on base is a criminal act. Whatever johnson did, i think it was t very same statute fraud againsthe United States, that bore us today. Mr. Sauer the distinction in those cases is between in the judicial case, johnson legislative its between leslative acts and nonlegislative acts. The dtinction in ex parte virginia is betweenudial acts and nonjudicial acts. That phrase iused. Here its president ial acts and nonpresideiaacts. And everything in the indictment is a president ial act. May i. There are a number of precedents or cases in which the Supreme Courtas reviewed actions by the president. The case ofoungstown, where the suem court reviewed hair are you trumans seizure of the steel mills during the korean war. Thethe case of little bahrain, where chi Justice Marshall revwethe actions of president ada wn he seized certain vessels. Trump vs. Hawaii was President Trumps oer restricting entry of the United States of nationals from certain foreign countries. Judge pan ow does that square with your position that the judiciary can never review executive action . Mr. Sauer all those cases fall scarily within the establishment of ex parte young wrehe judicial can issue judgments against subordinate officers judge pan these are president s. Harry tranas the president when he seized the steel mill. How does that comport with your eo . Mr. Sauer it was an injunio against the secta. The court has no jurisdiction to do that. Itannot enter strongly indicates that the court cant judge pan review president ial action if on paper they direct their judgment to a subordat officer. Is that what youre saying . These are president ial actions. Mr. Sauer the court cannj the actions of subordinate officers that violate the constitution. Ex parte judge pan im asking you a different question. These are president ial decision, pridtial actions. Youre saying that the court can review president ial actions as long as when they issue the judgme ty issue it to subordinate. Mr. Sauer directly sit in judgment. Its official. Its been established for over two years. Youre using the impeachment judgment clause as a negative implications with respect tth civilian officer o president , of course,aso be impeached and convictednd nevertheless thereafter. Judge childs if there is an acquitta h are you using it in that regard . Sometime particularly in this case the acquittal can arise fr lack of jurisdiction, not actually trying the merits of the case. Mr. Sauer the jgmt clause does distinguish between these who are marriage related officials the same thing comes up in criminal prosecutions where a determination that the defendant is acquitt ds not necessarily reflect an actual determatn that they are not factually guilty. This is emphasid the in the o. L. C. Kwrepl membero they addressed that tkefrplgser determination often reflects things distinct from the merits. That doesnt undermine the double jeopardy of the impeach jume clause. Judge childs jack smith is improperly appointed. Y have a position there . Mr. Sauer a persuasive brief. We have not is it in this case. It races very power phil questions. Time. Vent raised it at this the effect of if we say we cant determine if thes acts are official or private, i want to sy ay from that, im going to say minisri or discretionary. Jue henderson and it was characterized in terms of oic seeker versus Office Holder, what isour position about uld we have to remand it . To the district judge to decide in the first instance whether these various the four points that the defen has made against iosg criminal liability hingen whether the acts areinisterial, discretionary, official, private, or however you want to characterize it. Mr. Sauer ise the phrase clinton Vice President pence jones,ury private conduct is what can be subject to judicial process after a president leaves office. In response to your queson our principal position you can look at thiinctment it allegation oicl acts and it be dismissed. We acknowledge the District Court didnt reach that issue. Thcot has the discretion to remand to the District Court for the application of the doctrine of criminal immunity in the first instance. We admithawould be natural. If the court hol tt there is president ial immunity, whicht should, remand to the district urto say go through the indictment and or else hold factual findings to decide how it applies the conduct alleged in this case. The court s e discretion to do that. That would be natural course. If there are no further questions. I have one mo question. Judge pan under the framework established, discussed in nixon versus fitzgerald, we are supposed to cdu a balancing test whe wbalance the neal forhe asserted immunity versus other public ierests. I see you as tryingo represent a need for the executive to have this immunity to facilitate exutive functions. The ability to acwiout hesitation. Toe fearless. To me decisionmaking decisions without being inhibid by fear of criminal prosecution. It seems to me there are some other article 2 interests here that are counter vailing. Foexple, under the arcle 2 there is an executive investing clause. There is an interest of the executive branchs an institution to have constitutial executive power vest in a newly elected president. Thereal an executive interest as an institution in Law Enforcement and enforcing criminal laws. So it seems to me iwere weighing executive interests versus public interests, public interests in things like the integrity of an election, that presen trumps position is not fully aligned with the institutional interests of executive branch and in this balancing test th wkens the executive power that hes trying to assert. Mr. Sauer three things in response. Nixon Vice President pence fits gerald emphasizes the most compelling situation how is th considerations were rooted in the separation of powers is the rendering of the executive branch official unduel cautious in the exercise of idly cororsial decision that is come up all the time f a president has to look over he shoulder or his shoulder every time he makes a controversial decision, after ieaving office if i go to jail my political opponents take power that dampens the ability of the president. Judge pan i understand thats your position. What about other article 2 interests. Thats one interest. There are other artic 2 interests in play here, too, they seem to b countervailing. The interest in executive vesting. The interest in Law Enforcement. Those are also executive branch interests. And how should that affect the analysis . Mr. Sauer to the effect of court balance, go back to marbury versus madison. Tohe extent the court reaching thbance of the considerations outweighed by the sort of republic ctting consequences of subjecting our chief ecuves in an endless cycle of prosecution once they leafffe. The founders were very much against that. They were deeply concerned in that. You see that in hamiltons writings in federal 65, 67. And madison is interested in federalist 47. Thats the original meaning of the constitution. Do you think it occurred you think we should take any cog any stkapbs of the ft en they wrote cog any stkapbs of the fact when they wrote that George Washington was the president. Judge henderson strong executiv congress was brand new. Everything else was brand new. Thingsavbalanced out. We have a strong congress. We have a strong judiciary. And we have a strong president. Mr. Sauer if you look at the writings of the founders they were looking past the presidency of grge washington. An iconic figure. Looking past theresident of George Washington to future presidencies. They correctly anticipated the nation might they were deeply concerned about the nation woul devolve into factions. Immediately when youeto adams and jfeon they devolve into factis. They looked past that psidency to the future of the republic. A tradition that sved for 234 years ti last year when it was shattered by the indictment psident trump. If the court has no further questions i would ask the court to reverse. If the court rules against us in any spt, we request the court stay its mandate to allow us to seek further review. Thank you, yo honor. Judge childs mr. Pearce. Mr. Pearce ood morning. May it please the court. Never in our nations history ha president claimed immunity from criminal consideration extends beyond time in office. The pre has a unique constitution role. He is not the law. Separaf powersrinciples, constitutional history, precedent, and other immunity doctrines all point to the conclusion that a former esident enjoys no immunity from criminal prosecution. The defendant is alleged to have conspired to overturn results of a president ial election, is not the to criminal immunity. El form of i want tort with jurisdiction as judge childs raised. Has and should entertain both clefore it. With respect to the immunity claim, i think this courts cision in cisneros 10 years after midlandfault did of pewers powers claimion involving president ial immunity, i think judge henderson pointed outhe Supreme Court itself has acknowledged this idea of an explicit guaranteore of a suggestion than some sort of statuty prescription. Theres been no cases since th that have actually used that word suggestion to follow up on that line of thinking. Mr. Pearce ithin the Supreme Court, i dont believe there have beenases, but certainly this court in cisneros as well as cases post midland asphalt like rowski, and tkuren burger have recognized the of separation of powers claim immunity is something for which a collateral order Appellate Jurisdiction is ale. There are also other circuits. I think first, second, and 10 keep following that linef thinking with respect to midland asphalt it requires an explicit constitutir statutory language that case sa eus you cannot be tried. Mr. Pearce two responses. In like cisneros this court has spokerwise. I think the only one there is the firstits decision in joseph where it was se of a judge seek ago criminal raise seeking a criminal immunity def to a criminal prosecution. As this court acknod in both rostenkowd duren burger it acknowledge. Claiborne hastings which are ninthcuit and 11th circuit cases. Judge easterbrook in his shock opinion when it deals with aersonal immunity like that itferent than the transactional imimmunities considered in the Second Circuit case at the end of the day we do sort of a small point of co ground between us and the defendant, we do think with ect to jurisdiction there is inquiry with respect to a we dont think that carries over toerits in the least. I think the uniteds versus nixon is perfect example of that. There the court saidt would be unseem hold the president to require president to go into contempt, nonetheless reaching the merits reje president nixons absolute executive privilege claim. And required that you dont see anction on the civil versus criminal context. Mr. Pearce i dont. Rose said as much here when talking about civil encrime and criminal with respect to speech and debate. We strongly di that it should be applied here for many of the reasons that judge pan set out w respect to the immunity, given the language in rose, that supply basis for this court to entertain the immunity claim. Arent you taking the position we should dismiss this appeal because its interlocutory, doesnt that advance your interests . Mr. Pearce our interests are twof United States versus nixon, its g justice. And to move promptly to satisfy and vindihe publics and defendants interest in a prompt resolution of thil. But doing justice means getting the law right. Its our view that even if a dismissaurisdiction might hard to know, we shus skwr us dont think thats the right aak ths the right analysis. We have a line of cases, including cramer vs. And American Hospital association versus azar, it says we can assume hypothetical statutory jurisdiction and reach the merits of a case. Dge pan statutory teupbgt from art eugle 3 which we could never a that implicates the power of the court to act. If w discretion to reach thes versus just dismissing this case under midland asphalt, which is a strong pre, which suggests that this appeal is interlocutory, and it does not fall under t collateral order doctrine, how should we rmine how to exercise that jurisdiction about whether or not we should reach the merits . Mr. Pearce i thithe American Hospital de, the 2020 decision, t court said the formn was Something Like we are doubtful as to our jurisdiction, but nonetheless invoking the line of cases you just described went to decide the meri we would urge the court to do the same here. Even if it entertains doubts with respect to the iction. Yes, hypothetical statutory jurisdiction is availader the law of the circuit. The court should use that to reach the merits. Judge childs doesnt that lead mr. Pearce no. Al decision . Judge childs the Supreme Court saidhat. Mr. Pearce the steelco is the leading Supreme Court decision. Some courts including this court, has devised a hypothetical statuto jurisdiction doctrine. If this cere to dismiss for la of jurisdiction and then say, nonetheless as an alternative holding heres how we would ct on the merits, that i think would be improper. And i that is what i understand the ameri oversight brief to be suggesting on page 20 of itious. I understand theypothetical piece to allow the court to say is hard. Thereht be arguments on both sides. We think that theres we assume hypothetical statutory juries d. , we move forward. Jurisdiction. We move order. Let me ask you about marbury. Its progeny or the case itself . Mr. E our interpretation is much closer in line with what i think i heard judge pan setting similar to yours. It certainly does not ecorrect an unreviewable power for the presidency. The prime example that have is a that was is president truman closing the steel mills. Th court coming in and reviewinghat. We see that all the way thro to the president. Itsto see any world in which the court just says, we cant intervene here. We do see i accept the courts, judderson, the distinction b ministerial and discretionary acts. Mpliance with the law is not some sort of discretionary call. It is something that i endorse or agree with the idea of the paradox of a president s on the one hand having article 2 take care of the responsibility. On the other hand, sthe laws as compliance with the law as optional. Judge henderson how do we write an opinion that would stop the floodgates . Your predecessors in their o. L. C. Opinions recognize that criminal liability would be mr. Pearce a couple of for one, of course, that was with respect to ating president. The analysis is extraordinarily former president. Spect to a which o. L. C. In that very same judge henderson with respec to being necessarily political. Mr. Pearce i think there is a political process which is impeachment, can talk about that. But there is a Legal Process wh is decidedly not political. That is a proc which has the kindsf safeguards that a couple of meof the court here have already referred to. We are talking about prosecutors wh follow strict codes. Presumed to act with irregularity. And jurors. And this cf standing article 3 courtnding above t i want to pushback a little bit against this idea of floodgate. At least since the watergate 50 years ago, has there been widespread societ recognition, including by president s and the executive branch, that a former president is subject to crimin prosecution. Nixon was not about p conduct. Nixon was about, ang other things, using the c. I. A. To interfere with. I. Investigation. He acceptsardon understanding that after having resigned i think that undermines ts impeachment first argument. After nixon, we then see a series of independent and ial prosecutors different types of conduct. You saw idents p epbl counsel lawrence wal the irancontra affair. The department invokes in his reply brief in chapter 27 of report, the independent counsel assumes that president reagan was subject to ecution. And says, but we didnt get there evidentiary. Not that we sthaut there was immune thought there was immunity. Thats continued to pr this notion we are going to see a floodgate careful investigations and the in the clinton era didnt result in any ch did doesnt reflect that we aren going to see a sea change of vindictive tit for tat prosecutions in the future. I think itcts the fundamentally unprecedented nature of the criminal charges here. Ver before has there been allegathat a sitting president has, with private indis and using the levers of power, sought to amentally subvert the democratic republic and the electoral system. Frankly, if thatpattern arises again, it would be awfully scary if there werent some sort of mechanism by which to reach that criminally. In your brief you raised some sort of lesser immunity. Want to eato that . Mr. Pearce i do. We dont think that into play here. K the point was in some sort of more challenging cases, it might that where a president is operating under extraordinary time pressure has to mvery difficult, National Security type of cion. Do i go in and com this order the droike under these circumstances . A president will oftena cadre of lawyers to advise him or her. Theawyers say, madam president , well get you a memo in two months. Thot going to be enough in that situation. If there a drone strike, civilians were killed, that subject to some theoretically could be subject to some of prosecution as murd that might be a place which court would properly recognize some kind ofunity. Thats nothing like what w here. I take ther officials brief discussing the vesting ause to talk the nature of charges when they focus on, again, subverting th electoral process. At a minimum there should be no type of immunity that covers that. Judge pan are you saying it should be a casase balancing in each case . How does this work as a Legal Standard . Mr. Pearce we think ithould be just be as the distrbgt held, finding there is a balancing under fitzg thats our view. You start with this question. Whathe burdens against the interests to the f thehe answer to that question under fitzgerald we think the burdens my friend talks aboutthe other side are overstated. M happy to describe why. We think the interests publics interest in an ongoing criminal prosecution means there should be an congressional ad rule that a former president is subject to a crimina prosecution. What im describing in respo particular case might there be a some extraordinary circumstance where a president , a former presidend invoke an immunity . Maybe. I dont thincourt has to reach that there. I think the court could write an nay taoufrt allegations we take as true, there is no reaso recognize that here. I dont think is to be a case by case analy i think the court can reserve gives one pause about atent it president in fure situations. Can you answeth question i posed earlier to your opposing counsel about are we to look at the broader question that was with by the judge with respect to presil immunity, absolute immunit official acts versus looking at this indictment and accepting as true the allegations brought there or bh . Mr. Rce we have a strong preference the court adopts the former. As the distrbgt court did which is to say based on questi separation of powers, of constitutional text, history, precedent is ther immunity for we think the answer to that is no for all the r we put in the brief. Im happy to address here. Gets to that second question,t there are hard questions about the nature of official act as i think judge pans poetical described, what kind of world are we living in as i understood my friend on the other side to se, a president orders his seal team to assassinate a politicalal and resigns before an impeachment. Not a criminal act. President sells aardon, resigns, or not impeached, not a crime. I think that is extraordinarily frightening future. Thate kind we are talking about a balancing and weighing of the interestsink that should way extraordinarily heavily in the courts consideration. Judge childs let me ask you. Howit either judge henderson how does it bind us . Mr. Pearce it formally has no application at all because very early the opinion the court says we are not dealing with any questions about nity in the criminal context. I tend ee with my friend on the other side in many respects it do reinforce the nature o the fitzgerald c outer perimeter standard. It says yout look at intent oront look at purpose, context plays a more Important Role than the content of communicatio. I think the significant change is the acknowledgement of g at a president whether that presi is acting in his or her role as Office Seeker or office holde again, to goto my response to judge childs question, may change the nature of whether certain things are or are not official acts in the indictment, we jusk thats the wrong paradigm to use. We think that would be inconsistent with fitzgeralds reasoning. Also just irreable with nature how criminal law w to say we are not going to take into acche motive or intent, there arenty of acts every day. For example, were to encourage someone not toestify at trial because i wanted to go on a hike with that person. Not a crime. I encourage someone not to go on a hike because their testimony encourage them to ip their trial testimony because their testimony was goin to incrimie. The same underlying act. When you mapon to the president ial context you come up with s the frightening hypotheticals where as long as something is plausibly official, even if it involves or business rival, that wouldtic seem to then be exempt, potentially, from criminal prosecution. Ouldnt concede that if thats the world we need to live in. Think we would advance plenty of arguments bel but for those arguments themselves would create satellite litigation, an additional reason not to go down the route. Judge childs thinking about your answer potentially not looking at motive and intefpen there is a ray and intent is part of thens statute charge. Mr. Pearce precisely thats why it wouldnt make sense to come in and use non as i understand how fitzgerald o perimeter standard would work, itay those types of official acts, official conduct, in a is something from which the 3rez is immune ent is immune. You dont get to that second question of, well, did that person act with mens rea . At under a theory where its not available at trial, then there is no way to reach that condu judge childs when we looking at this ient, back to judge hendersonsstion, some of the acts are same or similar. And there was direct discussion of it in that opinion as rmining whether it was Office Seeker versus office er. Do we use blessinggame that . Mr. Pearce if this co decides the case the way the strict court did, i dont think it hasole to play at all. Ere is no questionf whether was this act official,these the question is, based onial. Fitzgerald analysis, history, precedetc. Is there any quantum of immunity for a former president . We think the answer to that question is no. Ere is no reason as the District Court also found to turn to the indictment and consids outer perimeter, civil outer perimeter. Judge hderson how about mr. Pearce if you dont there are a lot of different ways this court could note it that way. I think to pick up on my se to judge childs, we certainly stand behind ou in the brief that some substantial nof allegations would fall outside of an o perimeter. Affirm. Is enough to i think either party are urging theourt at that point to send the ack to the District Court. I think that would create a series of challenging questions that i mentioned earlier. What are the evidentiary ries under which that it would be our strong view, if the court followed that route, which e the court not to, to make it clear immunity is an off, off switch. This is the immunity appe if the court says we affirm, we send it back, there immunity, then other things become evide questions or questions of jurytructions, which any appeal is then an appeal fm the final judgment if any final judgment. Judge child the immunity defense is never lost . Pearce i dont think its immunity at that point. Whatt described, there is no immunity. There may be some t of other challenges as evident com at trial. I think that would lead to this extraordinarily compli litigationt is not the top line reason but certainly among the reasons why the court should not go down th path. Judge pan since President Trump concedes that a president can be criminally prosecuted under some circces, he says that that is true only if he is first impeached and ced by appeal largely boils down tothis whether hrrect in his interpretaf thempeach interpretatithe pao eupl etchment judgment clause . Hes correct includes this impeachment first rule, then he wins. If hes wrong, if we think the hment judgment clause does not contain an impeachment first rule, then he loses. Mr. Pearce ink thats right. The defendants theory over the course of this litigation has now before this court i understand the argument to be principae principal submission to be as you just described. What we ca in our brief the coitn precedent argument. That there is onlility, criminal liability for a former president if that president has been impeached and ced. That is wrong for textual, structural, historical reasons. And a host of practical ones. One of which ill start with again to amplify the point. It would mean that if a former president engages in assassination, selling p, these kinds of things and isnt impeached a convicted, there is nontability for that individual. That is frightening. To go back to some of the textual and historic a and structural. My friend on the other side suggess is what the worried about. Talking about and i think its entirely an inaccurate representation of the ng era history. There is no discussion of the impeachment judgment clause, which i take the dnts principleled textual argument to be, what the impeachment judgntlause did was two things. It constrained the sanctions that congress could place on an impaoefpd and convicted officer, not overwhelm a president. Kind of officer, to removal or disqualifn. Then it made clear that that impeachment did ne a bar prosecution. T criminal you would think that if there was this kind of impeachment first requirement, and conviction, you might actually find something somewherhe sources, the framing, convention in philadelphia, the ratification ussions early history. There is nothing of that. Ited certain things in our brief fros wilson, from edmondeton. From representative dana that justice story. I dont hear the defendant to offer anything other than hamilton. Allilton was describing was thendisputed point the sitting president cant be subject. Until that sitting president is no longer in office. Whether the removal in office is through impeoplement and iction or the end of the structural point as well i want to quickly make. The distrbgt court made this. If this rule wer right, that this. Put District Court made if this rule were right, that would puificant separation of powers problem on its own. The exe branch would only be able to prosecute someone if congress had acted. There are all of Reasons Congress wont act for one the and also in certain instancesd. Thide they dont have jurisdiction. Many of the me of congress seem to hold that view with respect to the defendants second impeachment. Thank you very much. Mr. Sauer ianto make three points to the court to the opposing counsels argument. One is he used the phrase above the law. Muty doctrine for criminal immunity would place t president above the law. I direct the courts attention tohathe Supreme Court said inwreubgson nixon against fiederald. Immunity sets the official above the law as, quote, rhetorically chilling but holy un wholly unjustified. The impeachment judgment clause, ese are the foundation and fundamenl w of our country. Ifheresidents immunity is determin o that. That imore rhetoric than reality is what the Supreme Court stayed in nixon against fitzgerald. When it comes to the request question, the indictment has official acts. It does not allege President Trump did anythg ong after he left office. It focusesolely on on what he took in office. Were dealing with official acts here. Then finally, i would address jue nderson your question about the floodgates. I tith to what my opposing counsel said about a socalled frightening future. Th frightening future he allegations where president s are seldom if prosecuted because they have be impch and convicted first. Thats 235 years. Thats not frightening, thats our republic. What hes forecasting ishe floodgates will open. We have the prosecution ofhe chief political opponent who is winning in every poll. Upcongext year. And being propertied by the mistration that hes seeking to replace. That is the frightening futur that is taylor tailormade to shake our rep skwrulg khao euld dyou have the impeachmentent clause indicate, impeachment, then conviction. But then president either resigns, is removed, and then later on is prosecuted for a different crime. Can that happen . Is there immunity there . Mr. Sauer not sure i understand e hypothetical. Judge childs if you are resti on there must be impeachment and conviction and for o s of crimes, then later on the president ehe is removed from ofce oresigns, and later on theris a prosecution for something different, is there immunity for that later crime . Mr. Ue yes, thats the better reason. sot presented in this case. Because we have a close match. There was an acquittal. The sonst case for double jeopardy and the facts alleged in the indictment. Judge childs you justade a statement abouhe only being prosecutedor crimes while in office. Thatshy im asking about leaving office and then there after being prosecuted for something different. Mr. Sauer the point is the nstitution. Best reading would be he has to be impeached andoncted for the thing he subsequently 3rr9ed. Hes impaoefptd and convicted and charge him with another official act, thats what chief justicsa in marbury would govern. Its not presented here. But that would be my answer. Judge pan your position is, if president tru h been co convicted after his impeachment trial on inciting an insurrection, he was convicted, this prosecution would be entirely proper. Mr. Saue iould say if he were impaoefpld and convicted for e seupl and similar conduct, that would authorization judge pan is th a yes . I think you id in your brief that impeachment for incite of insurrection is bed on the same related conduct as that which is in the indictment. Mr. Sauer i agree. Judge pan if he had been convicted by the senate, then th psecution would be entirely proper. Correct . Mr. Sauer i would not phrase it that way. There are lots of other problems we raised. Judge pan the impeachment dgnt clause, if he had been convict by the senate when he was impafp for incitement itch pao epd for in impeached for incitement of insurrection, this prosecution would be properly brought. Mr. Sauer a prosecuon this prosecution has other problems. Just want to be clear about that. Think judge pan under your interpretation of the impeachment dgnt clause. If President Trump had been convicted when he was previously impeached on same or related couct as that which is in this indime, the government could prorbly properly prosecute him for that same or related conduct. Yes or no . Mr. Sauer potentially, provided they qualified with all other legal documents violated ithis case. Judge pan im asking you under your interpretation of the impeachment judgment clause, is that proper . Is that allowed . Mr. Ue i stand on my prior answer. Judge pan i understand there might be othereans. Im saying based on your interpretation of the clae this prosecution would be properly brought. Mr. Sauer i would not say this prosecution. Very clear about that. Judge pan prosecution based on same or related conduct. Mr. Sauer this has other issues related to t the impeachment judgment clause authorizes the prosecutn a president whos been impaoefpld and convicted by the senate judge pan say a president was impeached and conviedn a charge of incitement of insur correction that isnd insurrection that sunned the same allegations as arinal indictment. Hes convicted. Then theovernment could bring a prosutn for the same or related conduct, correct . Mr. Saue i disagree. Judge pan then that means that the conduct, that same or lated, even if its official, he could be prosecuted for it, correct . Thank you. Judge childs my question goes to after the fact. The reason i state that even though you are challenging these acons are occurring while president , the district urs decision was that there is no president ial immit from prosecutn r official acts. It dsnt put a time frame in ther thats why im going to beyond your investigation, your prosecution might not come until later. After the president has left office. Are you tellings at we are limited to a time frame in answering this question . Mr. Sauer i think the time frame is set forth by chi justice in madison where he says never. Unless there is that one incidenthat has to occur, whicis impeachment and conviction, the official acts the court has no jurisdiction to review them under the separation ofows and the jue childs that assume an impeachment proceeding occre if there is not one, we discussed earlier, notll officials go through that process. Thats a judgment call as to whether that process would be brought. Mr. Sauer e ve two arguments. If there is no impeachment ever d 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 case of acquittal. Those areeinforcing doctrines set for the in the constitution set forth in the constitution. No further q