along with analysts chuck rosenberg and lisa rubin. what can we expect based on arguments put forward in advance by both sides? reporter: to set the scene, because donald trump is here in person the security has really been ramped up. there s a much greater police presence. in terms of in the courtroom, this is a long shot for donald trump, this idea that a former president can t be prosecuted for any acts whited while serving in offense, it s belied by the fact that gerald ford pardoned richard nixon. this three-judge panel is an all-female panel with two judges appointed by president biden and one appointed by former president george h.w. bush. in addition to arguing immunity, trump lawyers are also making the argument that this produce is improper under double jeopardy. ken, i need to interrupt you because the hearing is starting. let s listen in right now. our jurisdiction was challenged by an amicus. you are not questioning our collateral order jurisdiction? [indis
an official act. you have to say was it discretionary official act or was it a ministerial? i agree with that characterization of marbury. i think that is present in marbury itself. i think what i respond to that is that extension has never been extended up to the president and for good reason because for over 200 years the courts have said we can t sit in judgment over the president s official acts under any circumstances. for example, mississippi not criminally. we don t have any criminal reason. that s right. it has never arisen until this case. that s correct. if you look at every civil context, judge marshall says it is never examinable. no judicial proceeding where you can say the president did this and we ll sit in judgment directly over that. that s reinforced by mississippi v. johnson where the courts hold that we can t enjoin or enter a declaratory judgment against the president for his official acts.
and that s in the face at least with respect to the legislators of an explicit constitutional privilege. i don t view united states against johnson ex parte as resting on the ministerial versus discretionary distinction. what johnson says, it doesn t say hey when you were doing these other things, they were ministerial, what it says is these were not legislative acts. to draw the distinction between legislative and nonlegislative acts, i think that s the right reading of ex parte virginia. they say judicial act. the argument of picking a jury, i don t believe they use the word to my recollection ministerial, they say because they were picking the jury based on race is a criminal act. and whatever johnson did, i think it was the very same statute, fraud against the united states, that is before us today. i would say the distinction in those cases is between in the judicial case johnson sorry legislative the legislative
versus madison and you isolated that one sentence. isn t it true that the progeny of marbury versus madison distinguished between discretionary official acts and ministerial by which they mean imposed by law, and that is the latter one in which he can be held liable and i want you to address both u.s. v. johnson and the commonwealth of virginia, because the first one deals with the speech and debate clause. and the supreme court said in essence, lock off all the evidence dealing with speech and debate, he can still be prosecuted, that congressman, for i think it was conspiracy to defraud the u.s. and then in the commonwealth of