been held criminally liable, and that's in the face at least with the respect of the legislators of an explicit constitutional privilege. >> i don't view the united states versus johnson or ex parte of virginia as discretionary distinction and what johnson says is that it does not say, hey, when you were doing these other things that were ministerial, it is legislative acts, it is drawing between legislative and nonlegislative acts and that is the right reading of ex parte virginia and they go on the say judicial acts and the argument of picking a jury and they don't use the words to my recollection ministerial -- >> that is because they were criminal acts and picking the jury picked on race is a criminal act, and whatever johnson did, and i believe it is the very same statute fraud against the united states that is before us today. >> and i would say that distinction in those cases is in the judicial case johnson led