Attack. Th i an hour. United states of america versus donald j. Trump. [indiscernible] gd morni. Before you get started can i just get a couple of things on the record. Our jurisdiction was cllged by an amica. I do want to speak to you more about jurisdiction, because we still have to say we he the jurisdiction so even though you believe there is jurisdiction with respect to the collateral order doctrine, how do you place that in line with the asphalt case which specificallyayin a criminal case, your jurisdiction nds to stem from the cstitution or the explicit as well in statutory law . We have three responses. If you look at the lanag that justicecalia discussed, a situation whereheight is one, the legal andractical value would be destroyed and these claims of absolut immunity falls within that discrimination explicitly statinghaand dont have communication wh anything in the statute. I disagree. The doctrine arisees from article 2 and section 1. It is reenforced by the impeachment judgment clause which referto trial. Wallace facility is talking about a situation where the right not to be ted is distinguishishing and is dismissal of an indictment. We have the trial of any of the clauses in which the supreme has found interlock can you ter jurisdiction. On the immugs midland asphalt not president ial the argument situations where the court said look, there is a spchnd debate claim and another claim that doesnt derive from the constitution but closely akin in theoue jeopardy trial scenario you have twiceut in jeopardy so you cannot be tried again in that regard. Inhepeech and debate says shall not be questioned, so the language was explicit t doesnt say ex applies italy. One is the plainanage of impeachment clause. [indiscernible] impeachment and jgmt clause. And this court eressly held this isot magic and got to say right there in the context that this has a right to be tried. And explicitly the right noto be tried. And theanage that byidland asphalt is the situation where there is the appeal and legal and practical value is destroyed. And there are sil language in cisneros. It has to be [indiscernible] im not aware of that. Digital equipment. I think that is an excellent point. And tning to the merits if i may, your honor, to authorize th prosecution of a president for his official acts would open up a pan doras box which this naon may never recover. Could georgw. Ush be prosecuted for allegedlyivg false information to congress to induce the nation to go to war iraq under false present teenses could president obama for allegedly drone strikes targeting u. S. Citizens. D can i explore the implications of what you are arguing . I understand your position that president ismme from criminal prosecution from any official act that he takes as president , en that action is unlawful or unconstitutional rpe, is that correct . If the presints convicted and ieaed in a proceeding that reflectsidespread political consensus that would have plain language under the impeachment clause. So it seems to me there are a lot of things that might not go through that process because it is quite a couple birr somem process that has a lot of different people involved. So in your view, could a presidense pardon or 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 . 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 prosete and he cant be prosecuted for tha as long as it is an official act. Private conduct in clinton v. Jones cld president order seal am 6 to assassinate a political rival . He would have to be a b impeached and cvicted. There would be no criminal prosecution and no criminal liility for that . Chief justices opinion and th 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 team to assassinate a politicaril could he be subject to criminal . If he were impeached a convicted. My answer is a qualifiedes. A political processaso would require impeachment and conviction by theene. In these exceptional caseshich the memo points out you would expect a speedy impeachment and conviction. What the founders were concerned about was what James Madison in federal lift 47. Theyermore concerned with th abuse opolitical purposes to disable and that he is what see in that case. I asked you a series of hypothetical of criminal actions taken by a psint and could be considered official acts d i asked you would such a president bsubject to criminal prosecution . And your answer, yes or nos no . I said qualified yes if he is convicd d impeached. You are saying a president could selfpardon sl litary secrets and seal team 6 t assassin a political rival . I may sail of pardons your brief says communicating with executive brancagcies and communicating with Foreign Governments is an official act. [indiscernible] because under the procur that you concede he can bprosecuted if there is an impeachment and conviction byhe senate. [iisrnible] you are conceding that the president can be criminally prosecuted under certain circumstances. If they arempched and convicted. Isnt thatlso a concession that a president can be criminally pseted for an official act because a president can be impeached for an official act. Unique circumstances you are conceding that esident can be criminally prosecuted, doesnt tt narrow the issue before u to can a president be impeached im sorry, can a president be prosecedithout first being impeached and convicted . All your argumentfa away, your separation of powers fall away and policy arguments fall away if yocoede that a president can be criminally prosecuted under certain circumstances . Article 2, section 1 has interpreted [indisrnle] article 3, lack of jurisdiction inxanation of the president s officia acts. Cano if he is impeached and convict. There is exception t that principlin the impeachment clause. The constitution gives you other and framers were most concerned that the president wouldnt be impeached, what they were concerned was politically motivated but they didntay the president can never be prosecuted. They created a narrow exceptio would you concede there is not absolute immunity that the juciary can hear criminal prosecution under any circumstances, you are sin one specific circumstance does that mean there is absolute immunity . The constitution sets up a strong principle and very narrow exception and. It seems to me that once you concede that president s can be prosecuted under some circumstances, your separaon of powers argument falls awa 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 say what you say it does. I respectfully a strong principle in marry versus madison, you cantitn judgment because he can dit 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 acts or looking on a motion to dmi which says look to the allegations and take those as true and whether or not we should be looking at official acts. When people were not prosecuted, not everybody goes through a impeachment proceeding befo they get prosecuted. Only subordinate officers. And points out very clearly, the framers in the Constitutional Convention clearly contemplated that would be mandatory. Wld have to be impeaed and convicted. Deals with bribery, treason and highrimes and misdemeanor. And high crimes and misdemeanors basically cover anything that the u. S. Senate makes a political judgment and justifies from removinhifrom office. Oe not make political judgments to a charge. I think it has noasis. Where the current incumbent of presidency and number one political opponent. What the impeachment judgment clause is designed to do and limit itself to cta acts and then thereof and impeached and convicted theaer could be a prosecution. But not everod goes through that process. But noevybody has to go through that process prosecutors later on can come into informationnd evidence after they investigated to make determinations about what they would like to prosecute. They are not confined to the impeachment dgnt 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 where the i pardon given, there is an assumption that you cod prosecuted because why enter into those particular acts. Thosere purely. Clinton versuson that president clinton had admitted fo not being that was prite conduct. The president isnt imme for private conduct but for officl acts. An pardon of psident nixon. Presennixon was accused of a wide range of private conduct and facing potential indictme. That is purely private couc when we go to the indictment they are th a 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 indictment ndcernible] and return to the alleged motive or purpose and alleging purely prite conduct and engaged for particular purposesndhat is a strong line of Supreme Court this circuit distinguished of how you are committin the acts. It strongl reenforces. And going back to mbury versus madison the naref the act itself. And its an objective. And use the word objective context. It does not turn onhe purpose or motive. And this court properly rejected. And bradley against fishernd spalding and it is the strongest [. [indiscernible] well give you what you need, with respect to the actual indictntit does not gloss over and put it in terms of what you are dcring. And what has gone through a grandur process unlike the impeachment judgment clause, how do we ok at those particular acts. Clear guidance in nixon against fitzgerald. Pridt nixon terminated a whtleblower and came into court and said ts not subject to immunity and the court said we are not looking at that level of detail and the alleged motive for these acts and id the specificity is nducting the business. Similar here, you lk at the indictment, five classes of conduct which is alleged which s official conducteeting 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. [indiscernible] and prede trumps tweets, the Second Circuitel that it was an official anl of Government Communication and 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 you [indiscernible] i dont believe you we counsel then but what about the confessions in the first impeachment proceeding th peachment should b [indiscernible] when he would be subject. Trump ainst vance and criminalubpoena for tax recos that predated trumps time in office and concession that he could be subject to precion. As for the impeachment brief that they cite in their brief, they said we he judicial process in this country, period. We have an investigative that no officer is immeund. And its that there is a quote the congressional record in which your client said through counsel, no former Office Holder is immune from prosecution. Investiti. Well, that may be true subordine ficers but the president , he is immune unless he is impeached and convict. He was president at the time that no former office hdeis immune and the argument was there ino need to vote for impeachment because we have this backstop which is criminal prosecution and seems that many senators relied on that voting to acquit. [indiscernible] what motivated senators votes. [indiscernible] ook the position or your client did during the impeachment proceeding that there would be an optionor criminal prosecution later and its in the congressionalecd and what has changed or why did you change your position . I believe there was a distinction and the investigative process thawa 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 seraon of powers, couldnt be raised. There couldnt be a cmil process and defenses could be raiseds pretty straightforward. There is no su thing as no concession in those proceedings what the District Court did in this case that no president is iminally immune from criminal prosecution. I dont think it is there in the congressional record. Let me go back and you isolated tt one sentence. Isnt it true that marbury versus madison has distinguished between discretiona oicial acts and ministerial which they an imposed by law and its the latter one in which he can be held liable . And i want u i want you to address u. S. V. Johnson and the commonwealth of virgia the first one deals with the speech and debate clause. Thsueme court said in sence, all of the evidence dealing with the speh and debate he can sll be prosecuted, th i that congressman, or i think it was conspicy to defraud, and then inhe commonwealth of virginia you had the judge who had in charge with a crime underhi you could not discriminate in picking juries bed on rape. My reading of that case is that the language that you isolate in your reply brief that it could justs easily be done, that is 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, cking a jury they said was mistial imposed by law, whether yourthman on the street, the president , whether in that case you are the judge you can be held crinay libel. And thats how rd, if not marbury, t 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. Think the distinction is present in marbury. What i would respond that extension has never been extended tthpresident , 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. Ifou look at every civil context, what they said ha jeff sus teus marshall is is never examab. There would be no jicial proceeding where you can say the pridt did this and well sit in judgment directly over that. Thats reinforced by mississippi agait swanson. Where the courts hold we cant even enjoin or declare a judgment for the president in official acts. The difference between ministerial and discretionary has been heldotally with respect to subordinate officers. Thatoes back to marbury. Ifouook at the indictment in this case, nothing alleged against esent trump could be described as ministerial. I dont know where the government argued that if you are talking about responding to wispad allegations of fraud, us and misfeesance in a president ial election, trying to find out how to respond it to that. Matters that have nature not ministerial. Even ifhat distinction goes all the way up, it wouldnt save the indictment here. Why isnt it ministerial . His constitutional duty to take care that the la be faithfully executed requires hi to follow those laws, every one of them . Mr. Sauer i would say that the take care laws, carrying o ones duties in take care laws are dcretionary. Hes administerial actn marbury is delerg a seal when requested. Ther 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 hand,heriginal statute had imposed these ministerial duties tha had to do with record keeng 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 presint meeting with the department of justice, we should investigate d enforce federal fraud statutes, thatsinterial strikes me asnsupportable. I think youre missing what im asking. Jue henderson i think it paradoxical to say that his constitutional duty to takca that the laws be faithfully executed allows him to violate criminal laws. We are at the motion to dismiss stage. Thgornment has charged the specific criminal laws. We have to assume they are true. Mr. Sauer my spse would be to emphasize what chief justice said mshall said in marbury. Judge henderson i thought you re with me we have gotten beyondarry in the sense that official acts has been subdivided into discretionary anduty bound or ministerial. And in the ministeri o duty bound, at least with resct 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 exesng on the ministerial distinction. What johnson says idoesnt say, hey, when you were doing these other things eyere ministerial. Es were not legislativect it draws a distinction between legislativendonlegislative acts. So think thats the right reading ofhe ex parte virginia. They go on to say judicial act. The argume tt 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. Whever johnson did, i think it was t very same statute fraud againsthenited states, that is bor us today. Mr. Sauer the distinction in those cases is between in the judicial case, johnson legislative its between leslive acts and nonlegislative acts. The dtition in ex parte virginia is between judia acts and nonjudicial acts. That phrase ius. Here its president ialcts and nonpresident iaac. And everything in the indictment is a president ial act. May i. There are a number of precedents or cases in which the Supreme Court has reviewed actions by the president. The case ofoustown, where the suprem court reviewed hair are you trumans seizure of the steel mills during the korean war. Therethcase of little bahrain, where chief Justice Marshall revieweth actions of president adams wn seized certain vessels. Trump vs. Hawaii was President Trumps oerestricting entry of the United States of nationals from certain foreign countries. Judge pan how does that square with your position that the judiciary can never review executive action . Sauer all those cases fall scarily within the establishment of ex parte young wherehe judicial can issue judgments againstubordinate officers judge pan hese are president s. Harry trumanas the president when he seized the steel mill. How does that comport with your theo . Mr. Sauer it was an injunctio against the secreta. The court has no jurisdiction to do that. Itant enter strongly indicates that the court cant judge pan review president ial acon if on paper they direct their judgment to a subordinat officer. Is that what youre saying . These are president ial actions. Mr. Sauer the court can enj the actions of subordinate officers that violate the constitution. Ex parte judge pan im asking you a different question. Ese are president ial decision, presidti actions. Youre saying thathe court can review president ial actions as long as when they issue the judgment ty issue it to subordinate. Mr. Sauer directly sit in judgment. Its official. Its been established for over two years. Oure using the impeachment judgment clause as a negative implications with respect to th civilian officer or president , of course, has to be impeached and convictednd nevertheless thereafter. Judge clds if there is an acquittal, h a you using it in that regard . Sometimes particularly in this case the acquittal can arise fr lk of jurisdiction, not actually trying the merits of the case. Mr. Sauer the judgmt ause does distinguish between these who are marriage related officials the same thing comes up i criminal prosecutions where determination that the defendant is acquitted ds t necessarily reflect an actual determinatn at they are not factually guilty. This is emphasized the in the o. L. C. Kwrepl membero they addressed that tkefrplgser termination often reflects things distinct from the merits. That doesnt undermine the double jpardy of the impeach judgme clause. Judge childs jack smith is improperly appointed. Do y he a position there . Mr. Sauer a persuasive brief. We have not rais iin this case. It races very power phil questions. We havent raised it at this time. The effect of if we saye cant determine if these acts are official or private, i want to stay ay from that, im going to say ministeri o discretionary. Judge henderson and it was characterized in terms of offic seeker versus Office Holder, what isou position about ul we have to remand it . To the district judge to decide in the first instance whether these various the four points that the defense has made against imposg criminal liability hinge on whether the acts areinterial, discretionary, official, private, or however you want to characterize it. Mr. Sauer i use the phrase clinton Vice President pence jones, pury private conduct is what can be subject to judicial process after a president leaves office. In response to your question our principal position you can look at this inctnt it allegation officl acts and it be dismissed. We acknowledge theistrict court didnt reach that issue. The cot has the discretion to remand to the District Court for the application of the doctrine of criminal immunity in the first instance. We admit thawod be natural. If the court holds tt ere is president ial immunity, which it should, remand to the District Courto say go through the dictment and or else hold factual findings to decide how it applies the cduct alleged in this case. The court has e scretion to do that. That would be natural course. If there are no further questions. I have one more question. Judge pan under the framework established, discussed in nixon versus fitzgerald, we are supposed to condu a balancing test where wbance the neal forhesserted immunity versus other public ierts. I see you as tryingo present a need for the executive to have this immunity to facilitate exute functions. The ability to act wiou hesitation. Toe fearless. To me decisionmaking decisions without being inhibited by fearf criminal prosecution. It seems to me there are some other article 2 interests here that are counter vailing. For expl under the arcl2 there is an executive investing clause. There is an interest of the executive branch as an institution to have constitutional executive power vest in a newly elected president. Theres al an executive interest as an institution in Law Enforcement and enforcing criminal laws. So it seems to me if were weighing executive interests versus public interests, public interests ithings like the integrity of anlection, that presiden trumps position is not fully aligned with the institutional interests of executive branch and in this balancing test that wke the executive power that hes trying to assert. Mr. Sauer three things in response. Nixon Vice President pence fits gerald emphasizes t most compelling situation how is the considerations were rooted in the separation of powers is the rendering of the executive branch official unduel cautious in the exercise of idly controrsl decision that is come up all the time f a president has to look over her shoulder or his shoulder every me he makes a controversial decision, after ieang 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 article 2 interests in play here, too, they seem to be countervailing. Thinterest 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 urt balance, go marbury versus madison. Tohe extent the court reaching the bancof the considerations outweighed by the sort of republic chattin consequences of subjecting our chief execuvein an endless cycle of prosecution once they leaf offe. The founders were very much agnst that. They were deeply ccerned 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 to me. U think we should take any cog any stkapbs of the fact en they wrote cog any stkapbs of the fact when they wrote that George Washington w the president. Judge henderson strong executive. Congress was brand new. Everything else was brand new. Things havbanced 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 grgwashington. An iconic figure. Looking past theredent of George Washington to future presidencies. They correctly anticipated the nation might they were deeply concerned about the nation would devolve into factions. Immediately when you geto adams and jeffeonhey devolve into factions. They looked past that psincy to the future of the republic. A tradition that svefor 234 years unti last year when it was shattered by the indictment of psint trump. If the court has no further questions i would ask the court toeverse. If the court rules against us in any respt,e request the court stay its mandate to allow us to seek further review. Thank you, your honor. Judge childs mr. Pearce. Mr. Pearce morning. May it please the court. Never in ourations history has a president claimed immunity from criminal consideration extends beyond his time in office. The preside a unique constitutional role. He is not abo law. Separation powersiples, constitutional tex history, precedent, and other immunity doctrines all point to the conclusion that a former ent enjoys no immunity from criminal prosecution. At a minimum, this case in which the defendant is alleged to have conspired to overturn the results of a president ial election, is not the pla recognize some novel form of criminal immunity. I want to sith jurisdiction as judge childs raised. It is our view that the court s and should entertain both claimse it. Claim, i think this courtsy on in cisneros 10 years after midland addt did allude to a type of separation pewers powers claim involvingsidential immunity, i think judge henderson pointed outupreme court itself has acknowledged tha this idea of an explicit guarantee isof a suggestion than some sort of statutory prescription. Theres been no cases since tht have actually used that word suggestion to follow up on that line of thinking. Mr. Pearce n the Supreme Court, i dont believe there have been, but certainly this court in cisneros as well as cases post midland asphalt like rostei, and tkuren burger have recognized this t of separation of powers claim when you are talking about immunity is something for which a collateral order Appellate Jurisdiction is avail there are also other i think first, second, and 10 that keep following that line thinking with respect to midland asphalt it requiresn explicit constitutional statutory language that case sa eus you cannot be tried. Mr. Pearce two responses. In cas like cisneros this court has spoken ote. I think the only one there is the first cir decision in joseph where it was the of a judge seek ago criminal raise seeking criminal immunity defense to a criminal prosecution. As this court acknowled in both rostenkowski d duren burger it didnnowledge. The court there talked about claiborne hastings which are ninth c and 11th circuit cases. Judgeasterbrook in his shock opinion note it deals with anal immunity like that its dnt than the transactiona imimmunities considered in the Second Circuit at the end of the day we do sort of a small point of Common Ground between us and the defendant, we do think with reto jurisdiction there is a little bit of a different quiry with respect to a president. Dont think that carries over to thes in the least. I think the united sta versus nixon is tfect example of that. There the court saiduld be unseemly t hold the president to require president to go into contempt, nonetheless reaching the merits rejected president nixons absolute executive privilege claim. And required that you dont see a dison on the civil versus criminal context. Rose said as much here when talking about civil encrime and criminal with respect to speech and debate. We strongly disagrt it of the reasons that judge panny set out w respect to the immunity, given the language in rose, that wouply basis for this court to entertain the immunity claim. Why arent you taking the position we should dismiss this appeal because its interlocutory, doesnt that advance your interests . Mr. Pearce our interests are twofold. United states versus nixon, its dostice. And to move promptly to satisfy and vindicateublics and defendants interests in a prompt resolution of this tr but doing justice means getting the lawht. Its our view thatven if a dismissal ondiction might move this case faster, thats hard to know, we shus skwr us dont think thats the right aak thhe right analysis. We have a line of cases, including cramer vs. Gat versus azar, it says we canon assume hypothetical statutory jurisdiction and reach the merits of a case. Pan statutory jurisdiction being continues teupbgt from art eugle 3 which we could never assum that implicates the power of the court to act. If we ha discretion to reach the mer versus just dismissings case under midland asphalt, which is strong precede which suggests that this appeal is interlocutory, and it does not fall under the collateral order doctrine, how should we derme how to exercise that jurisdiction about whether or not we should reach the merits . Mr. Pearce i think i American Hospital decisi the 2020 decision, the court said the formulats Something Like we arebtful as to our jurisdiction, butetheless invoking the line of cases you just described went to decide the merits. We would urge the court to do the same here. Even if it entertains doubts with respect to the jurion. Yes, hypothetical statutory jurisdiction is available the law of the circuit. The court should use that to reach the merits. Judge childs doesnt that lead to a hypothetical decision . Mr. Pearce no. Judge childs the Supreme Court said mr. Pearce the steelco is the leading Supreme Court decision. Some courts including this court, has devised a hypothetical statutory jurisdiction doctrine. If this court to dismiss for lack of jurisdiction and then say, nonetheless as an alternativeolding heres how we would come the merits, that i think would be improper. And i that is what i understand the american oversight brief to be suggesting on page 20 of its pr. I understand thehetical piece to allow the court to say this is hard. There me arguments on both sides. We think that there we assume hypothetical statutory juries d. , we move forward. Jurisdiction. We move order. Let me ask you about marbury. Whats your interpretation of its progeny or the case itself . Mr. Pea our interpretation is much closer in line with what think ieard judge pan setting out. Similar to yours. Presidency. Able power for thet the prime example that have is a the youngstown case. Closing the steel mills. Uman the court coming in and reviewing we see that all the way through to the president. Its har see any world in which the court just says, we cant intervene here. We do see i accept the courts, judge hon, the distinction betweisterial and discretionary acts. Some sort of discretionary call. It is something that i ful 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, seein judge henderson how do we write an opinion that would stop floodgates . Your predecessors in their o. L. C. Opinions recognize that criminal liability would be dably political. Pearce a couple of responses. For one, of course, that was with respect to a sti president. The analysis is extraordinarily different with respect to a former president. Which o. L. C. In that very same judge henderson with respect to being necessarily political. Mr. Pearce i think there is a tical process which is that. Chment, we can talk about but there is a Legal Process which isecidedly not political. That is a process which has the kindsf feguards that a couple of memberhe court here have alreadyeferred to. We are talking about prosecutors who follow strict codes. An presumed to act with irregularity. Jurors. And this Court Standing article 3 court sg above t i want to pushback a little bit against this idea of floodgate. At least sincehe watergate er 50 years ago, has there been widespread societal recognition, including by president s and the executive ch, that a former president is subject to criminal prosecution. Nixon was not about priva conduct. Nixon was about, ather things, using the c. I. A. To interfere with a f investigation. He accepts aarn understanding that after having resigned i think that undermines this impeachment first argument. After nixon, we then see a series of independent and sp prosecutors investigating a range of fferent types of conduct. You saw indeps p epbl irancontra affair. Lsh i the reply brief in chapter 27 ofs that report, thendependent counsel assumes that president reagan was subject to prion. And says, but we didnt get there evidentiary. Not that we sthaut there was immune thought there was nity. Thats continued to presen this notion we are going to see aodgate careful investigations and the in the clinton didnt result in any charge the fact that this investigation d doesnt reflect that we are going to see a sea change of prosecutions in the future. I think it refthe fundamentally unprecedented nature ofhe criminal charges here. Before has there been allegation a sitting president has, with private individud using the levers of power, sought to futally subvert the electoral system. Ic and the frankly, if that facern arises again, it would be awfullycary 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 speatohat . Mr. Pearce i do. We dont think that comein play here. Sort of more challenging cases, it might b that where a president is operating under extraordinary time pressure has to make difficult, National Security type of deci do i go in and commit this order the drone sunder these circumstances . A president will often hav cadre of lawyers to advise him or her. Thers say, madam president , well get you a memo in two months. Thats going to be enough in thatituation. If there wer a drone strike, civilians were killed, that theyre wretically could be bject to some theoretically could be subject to some cou of prosecution as murder. That might be a place which the court would properly recognize some kind of iy. Thats nothing like what we ha here. I take the for officials brief discussing the vesting to talk the nature of charges when they focus on, 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 balancing in each case . How does this work as aegal standard . Pearce we think itd be just be as the distrbgt cour held,inding there is a balancing under fitzgeral thats our view. You start with this question. What are burdens against the presidency and what are the interests to the furththe fitzgerald we think the burdens my friend talks about o other side are overstated. Happy to describe why. We think the interests publics interest in an ongoing criminal prosecution means there should be an congressional ae rule that a former president is prosecution. Criminal what im describing in response to judge childs questions, in a particular case might there be where a president , a formerance president co invoke an immunity . Maybe. I dont think tht has to reach that there. I think the court could write an opinion that says based on the y taoufrt allegations we take as true, there is no reason to recognize that here. I dont think it ne be a case by case analysis. I think the court can reserve that question to the extent it gives one pause about a president in fsituations. Can you answer th question i posed earlier to your opposing counsel about are we to look at the broader question that was deal by the judge with respect to president immunity, absolute immunity fo no criminal prosecution of official acts versus looking at this indictment and accepting as true the allegations brought there or both . Mr. P we have a strong preference the court adopts the former. As the distrbgt court did which is to say based on questions separation of powers, of constitutional text, history, precedent is there immunity for a former president . Think the answer to that is no for all the reasoput in the brief. Im happy to address here. Candidly, i think if the court ts to that second question, therere hard questions about the nature of official acts. As i think judge pans hypoal described, what kind of world are we living in if as i understood my friend on the other side to say he, a to assassinate a political ram impeachment. Before an not a criminal act. President sells an, resigns, or not impeached, not a crime. I think that is extraordinarily frightening future. That is nd we are talking about a balancing and weighing of the interests, i that should way extraordinarily heavily in the courts consideration. Judge childs let me ask you. How doe either judge henderson how does it bind us . Mr. Pearce it formally has no application at all because very early on iopinion the court says we are not dealing with any questions about im in the criminal context. I tend to aith my friend spects it does reinforce the nature of the fitzgerald civil outer perimeter standard. It says you dook at intent or you look atpose, context plays a more Important Role than the content of communicatio i think the significant change is the acknowledgement of look a president whether or her role as Office Seeker or Office Holder. Again, to go bacy response toge childs question, may change the naturewhether certain things are or are not official acts in the indictment, we just thats the wrong paradigm to use. We think that would be inconsistent with fitzgeralds reasoning. Also just irreconc with nature how criminal law works to say we are not going to take into account motive or intent, there are p of acts every day. For example, if were to encourage someone not tofy at trial because i wanted to go on aike with that person. Not a crime. If i encourage someone not to go on a hike because their testimony encourage them to because their testimony was going to incriminate the same underlying act. When you map thao the president ial context you come up with some t frightening something is plausibly official, even if it involves assassinating prominent critic or business rival, that would seem to then be exempt, potentially, from criminal prosecution. Went concede that if thats the world we need to live in. K we would advance plenty of arguments below. But for those arguments themselves would create additional reason not to go down the route. Judge childs thinking about your answer abou potentially not looking atotive and intefpbt, here is a criminal prosecution, that mens ray and intent is part of the statute charge. Mr. Pearce precisely. Thats why it wouldnt make sense to come in and use thi non as i understand how fitzgerald outer perimeter standard would work, it can those types of official acts, official conduct, in a is something from which the 3rezs immune presis immune. You dont get to that second question of, well, did that person act with mens rea . At leaer a theory where its not available at trial, then there is no way to reach that conduct. Judge childs when we are looking at this indic back to judge hendersons qn, some of the acts are same or similar. And there was direct discussion of it in that opinion as deing whether it was Office Seeker versus office ho do we use blessinggame for that . Mr. Pearce if this Court Decides the case the way the ct court did, i dont think it has anyto play at all. Eris no questionether was this act official, oe sets of allegations official. E question is, based on fitzgerald analysis, history, precedents is there any quantum of immunity for a former president . We think the answer to that question is no. Is no reason as the District Court also found to turn to the indictment and consider t outer perimeter, civil outer perimeter. Judge hon how about mr. Pearce if you dont there are a lot of different ways this court could not dec it that way. I think to pick up on my respo judge childs, we certainly stand behind our vi in the brief that some substantial numbe allegations would fall outside of an outer perimeter. That i thi is enough to affirm. I think either party are urging the at that point to send the caseto the District Court. Series of challenging questions that i mentioned earlier. What are the evidentiary th under which that evidence could potentially come . It would be our strong view, if the court followed that route, which we u the court not to, to make it clear immunity is an off, off switch. This is the immunity appeal. If the court says we affirm, we send it back, there is immunity, then other things become evidentiastions or questions of jury itions, which any appeal is then an appeal fm e final judgment if any final jgment. Judge child the immunity defense is never lost . Mrce i dont think its immunity at that point. What i j described, there is no immunity. There may be some types of other challenges as evident comes i at trial. I think that would lead to this extraordinarily complicate litigation t 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 prosecuted under some circumst he says that that is true only if he is first impeached and conviy congress, do you agree that this peal largely boils down to whether hes t in his interpretation thech interpretation opao eupl etchment judgment clause . If hes correct includes this impeachment first rule, then he. If hes wrong, if we think the impet judgment clause does not contain an impeachment first rule, then he loses. Mr. Pearce i thats right. The defendants theory over the course ofhis litigation has evolved. W before this court i understand the argument to be principally principal submission to be as you just described. What we call in our brief the conditecedent argument. That there is only liy, criminal liability for a former ident if that president has been impeached and convi 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 pardo these kinds of things and isnt impeached and convicted, there is no accility for that individual. To go back to some of the textual andtoric a and structural. My friend on the other side suggests t what the founders were talking about and worried about. I think its entirely an inaccurate representation of the foun era history. There is no discussion of the achment judgment clause, which i take the defen principleled textual argument to be, what the impeachment judgmente did was two things. It constrained the sanctions that congress could place on an impaoefpd and convicted officer, not overwhelm a president. Anki of officer, to removal or disqualificat then it made clear that that impeachment did not hbar on subsequent criminal osecution. You would think thatthere was this kind of impeachment first requirement, and conviction fir you might actually find something somewhere in sources, the framing, convention in philadelphia, the ratification dions early history. There is nothing of that. We certain things in our brief from ja wilson, from edmond pen. From representative dana that say this. Justice story. Offer anything other thant to hamilton. All hn was describing was theputed point the sitting president cant be subject. L that sitting president is no longer in office. Whether the removal in office is through impeoplement and coon or the end of the term. Ructural point as well i want the distrbgt court made this. If this rule were right, that would put District Court made this. If this rule were right, that would put siant separation of powers problem on its own. The execut branch would only be able to prosecute someone if congress had acted. There are all sor of reasons never believed it was required. D also in certain instances jurisdiction. Nt have many of the member of congress seem to hold that view with respect to the defendants second impeachment. Thank you very much. Mr. Sauer i wanto make three points to the court to the opposing counsels argument. One is he used the phrase above the law. Immuty doctrine for criminal immunity would place the president above the law. I direct the courts attention to whathSupreme Court said inwrbgson nixon against fillederd. Immunity sets the oicial above the law as, quote, rhetorically chilling but holy un wholly unstified. The impeachment judgment clause, esare the foundation and fundamental w our country. If theredents immunity is determined o that. That imo rhetoric than reity is what the Supreme Court stayed in nixon against fitzgerald. When it comes to the request question, the indictment has ofcial acts. It does not allege President Trump did anything onafter he left office. It focusesoly on on what he took in office. Wereealing with official acts here. En finally, i would address judge ndson your question about the floodgates. I tie th t what my opposing counsel said about a socalled frightening future. Th frightening future he allegations where president s are ldom if prosecuted because they have to be impeach a convicted first. Thats 235 years. Thats not frightening, thats our republic. What hes forecasting ishe floodgates will open. We have the prosecution of the chief political opponent who is winning in every poll. Upcomingex year. And being propertied by the admisttion that hes seeking to replace. That is the frightening future. That is taylor tailormade to shake our republi skwrulg khao euldz dyo have the impeachment judenclause 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 the hypothetical. Judge childs if you are resting on there must be impeachment and conviction and for one s o crimes, then later on the president eithe is removed from ofce oresns, and later on there is a prosecution f something different, is there immunity for that later crime . Mr. Saue yes, thats the better reason. Itsotresented in this case. Because we have a close match. There was an acquittal. The stronstase for double jeopardy and the facts alleged in the indictment. Judge childs you justada statement about he only bng prosecuted for crimes while in office. Thats why im asking about leaving office and then there after being prosecuted for something different. Mr. Sauer the point is the nstution. Best reading would be he has to be impeached and conct for the thing he subsequently 3rr9ed. Hes impaoefptd andonvicted and charge him with another official act, thats what chief justice sa i marbury would govern. Its not presented here. But that would be my answer. Judge pan your position is, if President Trump h been co convicted after his impeachment trial on inciting an insurrection, he wasonvicted, this prosecution would be entirely proper. Mr. Sauer iou say if he were impaoefpld and convicted for the seupl and similar conduct, that would authorization judge pan is that a yes . I think you said in your brief that impeachment for incite of insurrection is bedn the same related conduct as that which is in t indictment. Mrsauer i agree. Judge pan if he had been convicted by the senate, then this psetion 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 judgntlause, if he had been convict by the senate when he was impaoefp for incitement itch pao epd for in impeached for incitement of insurrection, this prosecution would be properly brought. Mr. Sauer a prosecution this prosecution has other oblems. Just want to be clear about that. Think judge pan under your interpretation of the impeachment judgntlause. If President Trump had been convicted when he was previously impeached on same or related coucas that which is in this indictme, e government could prorbly properly prosecute him for that same or related conduct. Yeor no . Mr. Sauer potentially, provided they qualified with all other legal documents violated ith case. Judge pan im asking you uer your interpretation of the impeachment judgment clause, is that proper . Is that allowed . Mr. Saue i stand on my prior answer. Judge pan i understand there might be other reans im saying based on your interpretation of the clause this prosecution would be operly 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 prosecution aresident whos been impaoefpld and convicted by the senate judge pan say a president was impeached and convictedn charge of incitement of insur correction that is und insurrection that sunned the same allegations as a crina indictment. Hes convicted. Then theovnment could bring a prosecutn r the same or related conduct, correct . Mr. Sauer i disagree. Judge pan then that means that the conduct, that same or lad, even if its official, he could be prosecuted for it, rrect . Thank you. Judge childs my question goes to after the fact. The reason i state that even though you are challenging these aconare occurring while president , the district cours decision was that there is no president ial immunit from prosecution r ficial acts. It dsn put a time frame in there. Thats why im going to beyond your investigation, your prosecution might not come until later. After the president has left office. Are you telling us ate are limited to a time frame in anering this question . Mr. Sauer i think the time fre is set forth by chief justice in madison where he says never. Unless there i that one incidenthahas to occur, which is impeachment and conviction, the official acts e court has no jurisdiction to review them under the separation of pows and the jue ilds that assume an impeachment proceeding occurre if there is not one, we discussed earlier, notll officials go through that process. Thats a jgment call as to whether that process would be brought. Mr. Sauer we ve two arguments. If there is no impeachment ever d conviction, and the official acts are immune. Period. Further, the impeachment judgment clause incorporates a Doctrine Document of double jeopardy that prohibits it escially in the case of acquittal. Those are reiorcing doctrines set for the in the constitution set forth in the constitution. No further q