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
the distinction between ministerial and discretionary has been held totally with respect to subordinate officers and that goes all the way back to marbury. if you look at the indictment in this case, nothing against president trump could be described as remotely ministerial and i don t know if the government argued that, if you re talking about responding to widespread allegations of fraud and abuse and misfeasance in a presidential election, trying to find out how to respond to that, in the national interest. even if that distinction goes up to the it wouldn t stay in the indictment here. why isn t it his constitutional duty to take care that the laws be faithfully executed requires him to follow those laws. every one of them. i mean, nothing i would say the take care clause, carrying out one s duty in the take care clause are inherently discretionary. example of ministerial act in marbury against madison is like
constitutional duty to take care of the laws be faithfully executed allows him to violate criminal laws. we have to assume the laws are true. my response to that, i think would be to emphasize what chief justice marshall said in marbury, they can never be examinable by courts. that s in a criminal proceeding. i thought you agreed with me we have gotten beyond marbury in the sense that official acts has been subdivided into discretionary and duty bound or ministerial. and in the ministerial or duty bound, at least with respect to legislators and judges, they have been permanently held criminally liable.
virginia, you had the judge who had been charged with a crime under which you could not discriminate in picking juries based on race. and my reading of that case is that the language that you isolate in your reply brief, that it could just as easily be done, that is the choosing of the jury, a ministerial act, by someone on the street, to me that means when you have a duty that is imposed by law, picking a jury, they said was ministerial, imposed by law. whether you are the man on the street, whether you re the president, whether in that case you re the judge, who can be held criminally liable. and that s how i that s how i read, if not marbury, the progeny that is you can t stop
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.