are inherent in marbury versus madison are like delivering a seal when requested, because there is a separate statute, and the secretary of the state had two of the hats on and he was on one hand the direct agent of the president, and that could never be examinable by the courts, but on the other hand, the original statute had imposed all of the purely ministerial duties that had to do with the recordkeeping and delivering of documents and if you had a land deed that had a seal on it, and the person asked for it no, discretion at all, but the take-care clause, there is no statute that could impose on the president, a, a mandatory duty to engage, and the notion that when the president is meeting with the department of justice and enforce federal fraud statutes and that being ministerial strikes me as insupportable. well, i think that you are missing what i am asking. which is, i think that it is paradoxical to say that his constitutional duty to take care of the laws be fait
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
dernberger when talking about immunity is which a appellant jurisdiction of collateral order are in theory. and other circuits, 1st, 2nd and 10th are following that thinking of midland and asphalt which follow the explicit constitutional statutory language that says you cannot be tried. two, in cases like cisnernos, this court has spoken otherwise, but nonetheless, one there is the 1st circuit of joseph where a judge is seeking a criminal, or raising an immunity defense to a criminal prosecution as this court acknowledged in both i believe rostenkowski and durrenberger and the court talked about claiborne and hastings which are 9th and 11th circuit cases noted that with personal immunity like that, it is different than the
here. never before has there been allegations that a sitting president with private individuals and using levers of power sought to fundamentally subvert the democratic republic and electoral system, and frankly, if that fact pattern arises again, i think it would be scary if there were not some mechanism to reach that criminally. and in your brief, you raised some sort of lesser immunity potentially applying. do you want to speak to that? i do. we think it does not come into play here, but the point is that in some sort of more challenging cases, it might be that where a president is operating under extraordinary time pressure has to make a very difficult sort of national security-type decision, and do i go in commit this kind of, do we ord ear drone strike under these circumstances, you know, a president will have a
recognize some novel criminal immunity and i want to start with jurisdiction as judge childs raised. it is our view that the court has and should entertain both claims before it. with respect to the immunity claim, i think that this court s decision in cisnernos ten years after midland asphalt did allude to a type of separation of powers claim that involved presidential immunity and judge henderson pointed out that the supreme court, itself, has acknowledged the idea of explicit guarantee is more of the suggestion than some statutory prescription but there are no cases since then that have used the word suggestion to follow up on that line of thinking. within the supreme court, i don t believe there have been cases, but certainly, this court in cisnernos and in cases posting midland versus asphalt, and rose versus doskowski and