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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? ....
Position that judiciary can never review executive action? all those cases fall squarely within the well established exception and ex parte young where the judiciary is allowed and does frequently issue declaratory judgments and judgments against subordinate officers these are presidents. harry truman was the president when he seized the steel mill. how does that comport with your theory? that case was an injunction against the secretary of not against the president. this court reaffirmed recently you cannot enter strongly indicates that the court we can review presidential action if on paper they direct their judgment to a subordinate officer. is that what you re saying? these are presidential actions. the court can definitely enjoin the actions of subordinate officers that violate the constitution that is ex parte young. i m asking you a different ....
Prosecutor or state executive official. that s long-standing law. the issue here is different because it s private enforcement in state courts. and that raises a novel issue for us about how to apply ex parte young. the exparte young principle is that those who enforce the law can be injoined or can be sued, preenforcement suits in federal court. but as justice thomas points out, in the two paragraphs at the top of page 163 at ex parte young, state courts seem to be carved out from that. so that s the tension. i think you identified it. the principle of ex parte young versus the language at the top of 163. for me, that s been a real sticking point in trying to sort this out. one answer you didn t give is that subsequent law says that when state courts entertain ....