sell pardons or sell military secrets? those are official acts, right? it s an official act to grant a pardon. it s an official act to communicate with a former government. such a president would not be charged? [indiscernible] the doj decided not to prosecute bill clinton with that. your position is that he can t be prosecuted for that. as long as it s an official act. purely private contact you d be subject to prosecution for that. could a president order seal team six to assassinate a political rival? that s an official act. he would have to be impeached
immune, because you concede he can be prosecuted if there s an impeachment and conviction by the senate. [indiscernible] but you re conceding presidents can be criminally prosecuted under certain circumstances. typically if they re impeached and convicted. isn t that also a concession that a president can be criminally prosecuted for an official act, because presidents can be impeached for official acts. under those unique circumstances. given that you re conceding that presidents can be criminally prosecuted under certain circumstances, doesn t that narrow the issues before us to can a president be prosecuted without first being impeached and convicted.
for the court do. to the specific acts. yes. if the court holds there is presidential immunity, which it should, then remand to the district court to say, okay, go through the indictment and hold factual findings to find out how it applies to the conduct in this case. the court has the discretion to do that and that would be a natural course. if there are no further questions i have one more question. under the framework established in discussed in nixon versus fitzgerald, we re supposed to conduct a balancing test where we balance the need for the asserted immunity versus other public interests. and i see you as trying to represent a need for tecutive t to facilitate executive functions. the ability to act without hesitation, to be fearless, to make decision-making with to make decisions without being inhibited by the fear of
prosecuted. your brief says communicating with an executive branch agency is an official act and communicating with a foreign government is an official act. that s what presidents do. [indiscernible] the presence of official acts are never examiable by the courts. your position is, as i understand it, if a president is impeached and convicted by congress, that he is suggest to criminal prosecution, correct? [indiscernible] is that a yes? yes. okay. so therefore, he s not completely and absolutely
case johnson is between legislative acts and nonlegislative acts. the distinction in ex parte virginia is between judicial acts and nonjudicial acts. that phrase is used in here, the distinction is between presidential acts and nonpresidential acts and everything that is alleged in the indictment is a presidential act. your honor go ahead. may i? there are a number of precedents or cases in which the supreme court has reviewed actions by the president. the case of youngstown by the supreme court reviewed harry truman s seizure of the steel mills during the korean war. there is the case of little buream where chief justice marshall reviewed the actions of president adams when he seized certain vessels. how does that square with your