Check abuses of power especially the use of official power for private gain. Here the Executive Branch is enforcing congressional statutes and seeking accountability for petitioners alleged misuse of official power to subvert democracy. That is a compelling public interest. In response, petitioner raises concerns about potential abuses. But established legal safeguards provide layers of protections with the Article Iii Courts providing the ultimate check. The existing system is a carefully balanced framework. It protects the president but not at the high constitutional cost of blanket criminal immunity. That has been the understanding of every president from the framing through watergate and up to today. This court should preserve it. I welcome the courts questions. Does the president have immunity or are you saying there is no immunity even for official acts . Yes, justice thomas. But i think it is important to put in perspective the position that we are offering the court today. The president , as the head of the Article Ii Branch can assert article ii objections to criminal laws that interfere with an exclusive power possessed by the president or that prevent the president from accomplishing his constitutionally assigned functions. Thats the constitutional doctrine that currently governs the Separation Of Powers. What petitioner is asking for is a broad Blanket Immunity that would protect the president , a former president , from any criminal exposure absent impeachment and conviction, which has never happened in our history. We submit that is not necessary in order to assure that the president can perform all of the important tasks that the Constitution Reposes in him. In the not so distant past, certain president s have engaged in various activity, coups or operations Like Operation mongoose when i was a teenager, and yet there were no prosecutions. Why . If what you are saying is right, it would seem that would have been ripe for criminal prosecution of someone. Justice thomas, i think this is a central question. The reason why there have not been prior criminal prosecutions is that there were not crimes. I want to explain why there are layers of safeguards that assure that former president s do not have to lightly assume Criminal Liability for any of their official acts. At the outset, there is a statutory construction principle that is applicable here. It arises when there is a Serious Constitutional Question about applying a criminal statute to the president s acts. It is not im sure well discuss this that no statute can apply to the president in his official capacity absent a designation of the president in it. There is a principle if there is a Serious Constitutional Question, courts will strive to construe the statute so that it does not apply to the president. In addition to that, the president i think has been mentioned earlier has access to advice from the Attorney General and it would be a Due Process Problem to prosecute a president who received advice from the Attorney General that his actions were lawful. Absent the kind of collusion or conspiracy that it represented a criminal violation. Which i dont see as being a realistic option. Then if i can say one more thing because you raised the question about potential overseas taking of life. There is a Background Principle of criminal law called the Public Authority exception to liability and it is read into federal law unless Congress Takes specific action to oust it, which it never has done as far as i am aware. In a case in which the president sought to engage in overseas activity that would result in the taking of life, olc did not say the federal murder statute doesnt apply. That would be the thrust of my friends argument on clear statement. Instead, he went through an analysis where the Public Authority defense would prevent it from being considered a violation of law to go after a terrorist, for example. The Court Of Appeals below, whose decision were reviewing, said quote, a former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the law. Do you agree with that statement . I think it sounds true but i want to underscore that the obligation of a president is to take care that the laws are faithfully executed. I think it sounds true as well and that i think is the clearest statement of the Courts Holding which is why it concerns me. As i read it it says simply a former president can be prosecuted because he is being prosecuted. I would not suggest that thats either the proper approach in this case or certainly not the governments approach. A prosecution does, of course, invoke federal criminal law. The allegations have to be presented to a grand jury, which votes upon the indictment. Shortly after that statement in the court, the courts opinion, thats what they said but no reason to worry because the prosecutor will act in good faith and no reason to worry because a grand jury will have returned the indictment. You know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment and reliance and the good faith of the prosecutor may have not be enough in some cases. Im not suggesting here. So if those are the only protections the Court Of Appeals below gave and that is no longer your position, you are not defending that position, why shouldnt we either send it back to the Court Of Appeals or issue an opinion making clear thats not the law . I am defending the Court Of Appeals judgment and i do think there are layered safeguards that the court can take into account that will that concerns us. We are not endorsing a regime that we think would expose former president s to criminal prosecution in bad faith, for political animus, without adequate evidence. Politicallydriven prosecution would violate the constitution under wake versus United States. It is not something within the arsenal of prosecutors to do. Pros pros pros thats an ingredient. Then the courts stand ready to adjudicate motions based on selective prosecution and political animus. What concerns me is, as you know, the Court Of Appeals did not get into a focused consideration of what acts we are talking about or what documents were talking about because of its adoption of what you termed i agree quite correctly, as a statement. The fact of prosecution was enough to take any official community. They had no need to look at what courts normally look at when you talk about a privilege or immunity question. There is no immunity that is in the constitution unless this court creates it today. There certainly is no textural immunity. We dont submit thats the end of the story. United states versus nixon wasnt that type of case. Or fitzgerald. We endorse those holdings. What is important that no public official has ever had the kind of absolute criminal immunity that my friend speaks of even with respect to the speech or debate clause. It is very narrow focused on legislative acts, not focused on everything that a congressman does. It responds to a very specific historical circumstance that basically involved the two other branches potentially harassing legislators and preventing them from doing their jobs. Thats why it ended up in the constitution. Nothing like that ended up in the constitution for the president s and thats because one of the chief concerns of the framers was the risk of president ial misconduct. They labored over this. They adopted an Impeachment Structure that separated removal from office as a political remedy from criminal prosecution. This departed from the british model. That model was you get impeached and criminally convicted in the same proceedings. The framers wanted a political remedy in case a president was engaging in conduct that endangered the nation. He could be removed. He cant be prosecuted while a sitting president. That has been the Longstanding Justice Department position. You dispute the proposition that a former president has some form of immunity. But as i understand your argument, you do recognize that a former president has a form of special protection, namely, that statutes that are applicable to everybody must be interpreted differently when applied to a former president under certain circumstances. It is true because of the general principle they construe statutes to avoid constitutional questions and the longstanding in the Department Of Justice. This is more, i think, than just a quarrel about terminology, whether what the former president gets is some form of immunity or some form of special protection because it involves this difference which im sure you are well aware of. If it is just a form of special protection. Statutes will be interbreathed differently as applied to a former president. Then that is something that has to be litigated at trial. The former president can make a motion to dismiss and may cite opinions and the District Court may say thats fine. Im not bound by olc and lets go to trial. The trial may involve great expense and take up a lot of time and during the trial the former president may not be able to engage in activities that he would want to engage in and the outcome is dependent on the jury, instructions to the jury and how the jury returns a verdict and taken up on appeal. So the protection is greatly diluted if you take the form if it takes the form that you have proposed. Why is that better . It is better because it is more balanced. The Blanket Immunity that petitioner is arguing for just means that criminal prosecution is off the table unless he says that impeachment and conviction have occurred. Those are political remedies extremely difficult to achieve in a case for the conduct, misconduct occurs close to the end of a president s Term Congress is unlikely to crank up the machinery to do it. If the Impeachment Trial has to occur after the president has left office there is an open question whether that can happen at all. You are arguing against most far reaching aspects of mr. Sauers argument, right . Thats correct. Let me turn then to why what about to unpack it a little more, do you agree there are some aspects of article ii president ial power that are exclusive and Congress Cannot regulate and Cannot Criminalize . Absolutely. For other official acts that the president may take that are not within that exclusive power, assume for the sake of argument this question. There is not Blanket Immunity for those official acts, but that to preserve the Separation Of Powers, to provide fair notice, to make Sure Congress has thought about this, that congress has to speak clearly to criminalize official acts of the president by a specific reference. That seems to be what the opinions suggest. You have a disagreement with that and what this courts case also suggests. I would like to take all of those in turn because i dont think this courts cases speak that broadly. I definitely dont think the office of Legal Counsel opinions stand for this broad proposition that unless the president is specifically named, he is not in the statute and i dont think thats necessary in order to afford adequate protection for the president s article ii function. You said i want to get this out and incorporate it in the answer. Unless there is a Serious Constitutional Question. Well, its a Serious Constitutional Question whether a statute can be applied to the president s official acts. Wouldnt you always interpret the statute not to apply to the president even under your formulation unless congress had spoken with some clarity . I dont think across the board is Serious Constitutional Question the problem is the obstruction and 371, conspiracy to fraud the United States can be used against a lot of president ial activities historically with a creative prosecutor who wants to go after a president. Let me try to balance that. That is what were talking about historically is the risk. And Going Forward the risk. You can take all of that. I think the question about the risk is very serious. Obviously it is a question that this court has to evaluate. For the Executive Branch, your view is that there is a balanced protection that better serves the interest of the constitution that incorporates both accountability and protection for the president. I want to go through the protections that do exist. But perhaps it is worth returning at the outset to the statutory Construction Question that you raised. The office of Legal Counsel has said the offense of bribery applies to the president. It does not name the president , justice gorsuch, it does not specifically name the president. I assume thats personal. Thats what brewster said. Bribery statute seven says the president. I have it in front of me and so there is that. Let me just back up, though, just a second what was a Quick Exchange with Justice Kavanaugh that i want to make sure i understand. Did you agree there are some Core Functions of the Executive President Conduct that Congress Cannot criminalize. We can call it immunity or cant do it. Whats the difference . An applied Article Ii Challenge. Can we call it immunity so were narrowing the ground of dispute here. It seems to me there is some area you concede that official acts that Congress Cannot criminalize. Now we are talking about the scope. I dont think its a just. A very significant gap between any official act and the small core of exclusive official acts. I got that. I want to explore that, okay . So, for example, lets say a president leads a mostly peaceful protest sitin in front of congress because he objects to a piece of legislation thats going through. And it, in fact, delays the proceedings in congress. Now under 1512. C2 that might be corruptly impeding an official proceeding. Is that core and therefore immunized or whatever you want to use for that or not core and therefore prosecutable . Without a clear statement that applies to the president. It is not core. The core kinds of activities that the court has acknowledged are things that i would run through the youngstown analysis. It is a pretty small set. Things like the pardon power, the power to recognize foreign nations, the power to veto legislation, the power to make appointments. These are things that the constitution specifically allocates to the president. A president could be prosecuted for the conduct i described after he leaves office . Probably not. I want to explain the framework of why i dont think that would be prosecution that would be valid. First i think you need to run through all of the sort of normal categories of analysis. Is there a Serious Constitutional Question that is posed by applying that statute to the president . If so, then you may well default to it does not apply at least on that pattern. That was my question. You said it fell outside that core well call it immunity for simplest why couldnt be he protested for leading a civil rights protest that delays a vote on a piece of important legislation . I think what you need to do is run through all of the very president specific protective layers of analysis. One of them is whether the statute would be construed not to apply to his conduct even if its not part of that small core of things that congress cant regulate at all. If it operates to prevent the president from fulfilling his article ii. He could have given speeches against it. He did. He did something more and it corruptly impeded and sought to influence an official proceeding. I dont know, were starting with the layers of protection and down through whether the statute would be construed to apply to him. Then there would be a question. Assume it does. I will assume it. Then a question of whether or not he has a state of mind. Assume he does. Nobody knows what corrupt intent means. Weve been around that tree once already. Maybe it means he knows he was doing wrong is what the government told us. He knows he is doing wrong. He knows he shouldnt be out there blocking a congressman. Let me get to the next layer. The president does have access to the Attorney General to provide legal advice and regularly gets legal advice from the Attorney General on the lawful scope of the president s activities. We can go down two tracks here. One is that the Attorney General advises him as an incident of his Article Ii Authority and carrying out the funct