discretionary and i want to say office siege versus officeholder, what is your position of would we have to remand it for the district judge to have to decide in the first instance whether these various four points that the defense has made against imposing criminal liability hinge on whether the acts are ministerial, discretionary, private or however you want to categorize it. >> i would use clinton versus jones is purely private conduct is what is judicial conduct after a president leaves office. and our position is that the indictment is to be dismissed because we acknowledge that the judicial court did not reach that in blaisingame and in the